RLF 


STATE  OF  NEBRASKA 


REPORT  UPON  THE 
OPERATION  Of  THE 


WORKMEN'S 

COMPENSATION 

LAW 


FOR  THE  YEAR  ENDING 
NOVEMBER    30,     1915 


ACCIDENTS  ARE  AN  INDUSTRIAL  DISEASE 
"When   thou   buildest   a  new   house,   tl<< 
thou   shall   make   a    battlement,   for    thy 
roof,  that  thou  bring  not  blood  upon  thine 
house    if    any    man    fall    from    thence." 
— Deuteronomy,  Chapter  xxii. 


STATE  DEPARTMENT  OF  LABOR 


GOVERNOR  JOHN  H.  MOREHEAD 


FRANK  M.  COFFEY 

Deputy  Com)n,ixsi'>- 

MAY  MORRIS  HARRIS 

BERN  ICE  OWEN 

Stenographers 


Claflin  Pr1ntln«  Co., 


Uni?ersity  Place,  Nehr. 


GIFT   OF 


DOCUMENTS 


STATE  OP  NEBRASKA 


REPORT  UPON  THE 
OPERATION  OP  THE 


WORKMEN'S 

COMPENSATION 

LAW 


FOR  THE  YEAR  ENDING 
NOVEMBER    30,     1915 


ACCIDENTS  ARE  AN  INDUSTRIAL  DISEASE 

"When  thou  buildest  a  new  house,  then 
thou  shalt  make  a  battlement,  for  thy 
roof,  that  thou  bring  not  blood  upon  thine 
house  if  any  man  fall  from  thence." 
— Deuteronomy,  Chapter  xxii. 


STATE 


GOVERNOR  JOHN  H.  MOREHEAD 

Commissioner 

FRANK  M.  COFFEY 

Deputy  Commissioner 

MAY  MORRIS  HARRIS 

BERN  ICE  OWEN 

Stenographers 

Claflin  Printing  Co.,  ^i^gu  University  Place,  Nebr. 


, 

1 1  • 


... 


WORKMEN'S  COMPENSATION 


A  New  Economic  Principle 

The  passage  of  the  "Nebraska  Workmen's  Compensa- 
tion Law"  by  the  legislature  of  1913  introduced  a  new  eco- 
nomic principle  into  the  affairs  of  the  state  government. 

The  first  workmen's  compensation  law  was  enacted  in 
Germany,  July  6,  1884*  Forty-two  of  the  civilized  nations 
of  the  world  now  have  such  laws.  Thirty-six  states  of  the 
United  States  have  made  this  practically  new  economic 
principle  a  part  of  the  statute  law  of  the  state. 

Workmen's  compensation  laws  are  distinctively  a  prod- 
uct of  modern,  social  and  economic  conditions. 

The  underlying  principle,  which  is  the  foundation  of 
workmen's  compensation,  is  that  the  burden  of  accidents 
occurring  in  any  industry  shall  become  a  part  of  the  cost 
of  the  production  in  that  industry,  to  the  end  that  the  con- 
sumer of  the  product  will  eventually  bear  the  expense  of 
the  same.  This  principle  of  social  right  and  justice  means 
that  the  loss  occasioned  by  accidental  injury  is  as  much  a 
part  of  the  cost  of  the  article  produced  as  in  any  other  loss 
ivhich  might  be  occasioned  by  the  destruction  of  material  or 
the  breaking  or  wearing  out,  or  replacing  of  machinery  and 
tools  of  any  kind.  By  most  any  sort  of  careful  reasoning 
one  will  reach  the  conclusion  that  compensation  paid  to  an 
injured  workman  as  the  result  of  an  accident  "arising  out 
of  and  in  the  course  of  his  employment"  bears  as  close  rela- 
tionship to  the  cost  of  producing  a  commodity  (in  which 
the  employe  is  engaged  at  the  time  of  the  accident)  as  does 
the  cost,  expense  or  loss  occasioned  by  broken  machinery  or 
equipment. 

:U>655i 


<  i-    V' 


STATE  DEPARTMENT  OF  LABOR 


'Safety  First"  Suggestions 


The  mere  installation  of  safety  devices  does  not  discharge  the 
duty  of  the  employer. 

The  employer  should  realize  that  furnishing  safety  devices 
is  only  his  initiation  into  the  campaign  of  accident  prevention.  He 
must  insist  upon  their  use  at  all  times. 

Delay  is  much  better  than  an  accident,  from  both  the  financial 
and  humane  standpoints. 

The  employer  who  provides  a  safety  device  to  ostensibly  com- 
ply with  an  order  of  the  inspector,  and  then  requests,  encourages, 
consents  to  or  acquiesces  in  its  non-use  is  in  no  situation  to  insist 
that  his  employe  who  is  injured  thereby  is  not  entitled  to  com- 
pensation because  of  the  non-use  of  such  safety  device.  Don't 
forget  this. 

No  employer  is  without  fault  until  he  has  placed  in  operation 
in  his  plant  the  precautions  that  ivill  reduce  accidents  therein  to 
the  inevitable  class. 

Industrial  accidents  are  of  two  classes,  the  inevitable  and 
the  preventable. 

Inevitable  accidents  do  not  result  from  the  fault  of  anyone, 
and  the  loss  occasioned  thereby  is  naturally  a  part  of  the  cost 
of  production. 

Preventable  accidents  result  from  the  fault  of  someone. 

As  between  the  employer  and  the  employe,  they  result  either 
from  the  failure  of  the  employer  to  place  in  operation  such  pre- 
cautions or  to  use  such  safety  devices,  or  to  exercise  due  care. 

As  to  injuries  resulting  from  accidents  happening  on  account 
of  the  fault  of  the  employer,  the  employers,  by  such  a  course  of 
conduct,  recognize  the  expense  thereof  as  a  legitimate  part  of  the 
cost  of  production. 

For  years  Nebraska  employers  carried  liability  insurance  to 
indemnify  themselves  against  loss  for  injuries  caused  by  such 
accidents. 

Certainly  the  cost  of  such  insurance  has  been  treated  as  a 
part  of  the  expense  of  operation,  and,  therefore,  is  a  part  of  the 
cost  of  production,  to  be  borne  ultimately  by  the  consumer.  It 
would  be  a  fallacy  to  even  imagine  that  the  aggregate  of  the 
premiums  paid  for  such  insurance  do  not  so  far  exceed  the  li- 
abilities of  the  employer  for  such  injuries  as  to  pay  the  expenses 
of  such  insurance,  and  leave  the  companies  writing  it  a  profit. 
Insurance  is  business,  not  sentiment.  It  is  carried  on  for  profit. 


FRANK   M.   COFFEY 
Deputy  Commissioner  of  Labor 


STATE  DEPARTMENT  OF  LABOR 


Short  "Safety  First"  Sermons 

The  employe  who  thinks  he  can  learn  thinks  a  great  truth. 

Carefulness  costs  you  nothing  and  its  value  cannot  be  meas- 
ured. 

Eight  out  of  ten  accidents  would  never  happen  if  the  eight 
injured  men  had  the  safety  ha^it. 

Accidents  cost  those  who  are  injured  pain,  worry,  suffering, 
loss  of  time  and  wages.  Why  not  avoid  them? 

The  principal  factor  in  accident  prevention  is  the  application 
of  good  common  sense. 

Working  for  "safety"  is  the  highest  form  of  service.  Safety 
men  are  humanity's  greatest  friends. 

It  takes  only  a  moment  of  carelessness  to  cause  a  lifetime 
of  suffering. 

Guards  are  placed  on  machinery  for  the  protection  of  the 
employe.  Don't  operate  the  machinery  unless  guards  are  in  place. 

It  is  the  chance  takers  who  make  widows  and  orphans. 

Every  warning  sign  means  a  danger  is  pointed  out  there. 
Take  the  safety  way. 

Life  is  too  short  to  take  chances.  Regrets  don't  bring  back 
lost  legs,  arms  and  eyes. 

Recklessness  is  no  indication  of  courage.  Brave  men  are  al- 
ways cautious. 

Do  not  work  with  defective  chains,  cables,  tools  or  appliances 
of  any  kind,  or  even  in  an  unsafe  place.  Carefully  examine  same 
and  report  dangerous  conditions  to  your  employer. 

Wear  goggles  when  working  around  circular  saws,  chipping, 
handling  acid,  cutting  cables,  working  at  emery  wheels,  etc. 

A  careful  man's  greatest  risk  of  injury  is  because  of  careless- 
ness on  the  part  of  someone  else.  Watch  the  other  fellow. 

Get  the  safety  habit.  Don't  take  chances.  Learn  all  the  rules, 
understand  your  work  thoroughly.  Study  the  dangers  incident 
thereto  and  avoid  them.  Think  before  you  act. 

Safety  appliances  are  placed  on  'machinery  for  your  protec- 
tion and  benefit.*  Use  them. 

Carelessness  is  the  cause  of  many  advoidable  injuries.  In 
fact  it  can  safely  be  said  that  carelessness  in  some  form  or  other 
is  responsible  for  more  accidents  than  any  other  specific  cause. 
Carelessness  sometimes  takes  the  form  of  downright  recklessness, 
although  it  is  more  frequently  manifested  as  mere  thoughtless- 
ness or  indifference. 

Every  workman  should  be  thoroughly  impressed  with  the  fact 
that  his  safety  and  the  safety  of  his  fellow  workmen  depends  upon 
his  own  carefulness.  , 


WORKMEN'S  COMPENSATION  LAW 


The  First  Year  of  Compensation 


The  Nebraska  compensation  law  was  passed  by  the  thirty-third  ses- 
sion of  the  legislature  (1913-1914)  and  was  designated  as  "Workmen's 
Compensation  Law  of  1913."  Under  the  provisions  of  the  constitution  the 
law  would  have  been  in  effect  July  18,  1913.  Those  opposed  to  making 
the  principle  of  compensation  for  work  accidents  regardless  of  fault  a 
part  of  the  statute  law  of  the  state  circulated  a  petition  and  the  law  was 
held  in  abeyance  until  after  the  referendum  election  in  November,  1914. 
In  the  November  election  of  1914  the  people  of  the  state  approved  the 
law  and  compensation  for  work  accidents  regardless  of  fault  become  a 
part  of  the  statutes  of  Nebraska,  December  1,  1914,  by  a  proclamation 
issued  by  Governor  John  H.  Morehead  as  directed  by  the  provisions  of 
the  initiative  and  referendum  law. 

The  Principle  of  Workmen's  Compensation 

The  principle  of  workmen's  compensation  is  that  industry  in  general 
should  bear  the  financial  burden  of  all  industrial  accidents  rather  than 
the  workers  who  happen  to  be  the  victims  of  particular  accidents,  and  that 
the  only  way  this  can  be  accomplished  is  through  the  agency  of  the  em- 
ployer who,  in  computing  costs  and  fixing  the  price  of  his  finished  product 
will  include  the  industrial  losses  due  to  accidents. 

Industrial  operations  being  broadly  considered,  the  question  of  direct 
fault  is  not  material.  The  fact  that  loss  of  bodily  faculty  and  regular 
wages  occurs  entitles  the  victim  to  compensation  unless  his  injuries  have 
been  received  through  his  own  wilful  intent.  In  this  concept  of  social  ob- 
ligation the  compensation  principle  differs  from  the  old  system  of  em- 
ployers' liability,  under  which  the  employer  paid  damages  only  where 
the  accident  was  due  to  his  fault  or  the  fault  of  his  servants. 

Further  Extension  of  Employers'  Liability 

The  liability  of  employers  under  the  statute  could  have  been  and  un- 
doubtedly will  be  further  increased  by  the  enactment  of  safety  requirements 
and  regulations,  the  violation  of  which  would  imply  negligence  and  create 
liability  on  the  part  of  the  employers.  This  phase  of  the  subject  is  illus- 
trated by  federal  law.  Under  the  safety  appliance  act  affecting  interstate 
railroad  employes,  as  interpreted  by  the  United  States  supreme  court,  the 
employer  is  under  an  absolute  duty  not  only  to  install  specified  safety 
appliances  but  to  keep  them  in  order.  The  original  argument  of  the  rail- 
road companies  was  that,  having  installed  safety  appliances  as  required 
by  the  statute,  their  full  duty  was  performed  by  using  reasonable  care 


8  STATE  DEPARTMENT  OF  LABOR 

in  keeping  them  in  order,  but  this  contention  the  supreme  court  overruled, 
deciding  that  the  duty  imposed  upon  the  railroad  company  to  install  the 
safety  appliances  was  a  continuing  one  and  that  the  company  was  liable 
to  an  employe  injured  from  failure  to  keep  the  appliances  in  order.  From 
this  it  is  apparent  that  if  compensation  had  not  been  proposed  the  em- 
ployers' liability  would  ultimately  have  been  greatly  increased  both  by 
the  removal  of  the  common  law  and  statute  defenses  and  the  adoption  of 
strict  safety  requirements.  Since  it  is  certain  that  liability  laws,  based 
as  they  are  upon  negligence  or  the  violation  of  a  statutory  duty,  can  never 
reach  all  accidents,  as  many  can  not  be  traced  to  legal  fault  of  any  kind, 
an  employer  would  have  found  himself  under  the  burden  of  an  expensive 
liability  law  without  affording  protection  to  all  of  his  employes. 

Questions  Should  be  Considered  Separately 

Each  of  the  problems  arising  under  the  compensation  act  should  be 
considered  separately,  and  that  much  of  the  confusion  that  exists  upon 
the  subject  is  due  to  the  fact  that  public  opinion  with  regard  to  a  par- 
ticular statute  is  controlled  and  influenced  by  some  particular  feature  of 
the  law,  when,  as  a  matter  of  fact,  that  particular  feature  is  merely  inci- 
dental and  not  essential  to  the  operation  of  the  principle  of  workmen's 
compensation.  This  became  apparent,  for  example,  when  persons  were 
found  criticising  compensation  legislation  in  general,  when  as  a  fact  their 
antipathy  had  been  aroused  merely  by  reason  of  a  particular  defect  or 
through  faulty  method  of  administration  which  can  easily  be  cured ;  on 
the  other  hand,  persons  are  found  praising  aparticular  method  of  ad- 
ministration, entirely  unmindful  of  the  fact  that  equally  fortunate  results 
are  reached  under  other  methods. 

The  principle  of  granting  compensation  to  injured  workmen,  regard- 
less of  fault,  is  the  essential  attribute  of  a  compensation  act;  that  principle 
should  be  tested  upon  its  own  merits.  The  methods  of  administration 
and  of  insuring  the  payment  of  compensation  are  entirely  separable  from 
the  consideration  of  the  principle  of  workmen's  compensation. 

Prior  to  the  enactment  of  the  Compensation  Law,  Nebraska  had  prac- 
tically no  legislation  on  its  statute  books  providing  for  industrial  safety. 
Other  states  have  had  factory  inspection  laws  and  acts  of  a  similar 
nature  designed  to  provide  safety  and  sanitation  in  all  working  places. 
The  absence  of  "any  law  of  this  nature  in  this  state  means  that  there  is 
an  open  field  in  which  to  work  that  must  be  pioneered  in  such  a  manner 
as  to  secure  the  best  results  and  to  efficiently  surround  employes  with 
safe  conditions  of  employment.  One  of  the  great  objects  of  the  com- 
pensation act  is  to  reduce  the  number  of  accidents  occurring  in  the  in- 
dustrial field  in  this  state.  This  can  be  best  brought  about  by  enlisting 
the  active  support  and  cooperation  of  both  employer  and  employe.  Each 
preventable  accident  that  is  allowed  to  take  place,  represents  a  costly 
error  in  social  efficiency  for  the  value  of  a  human  life  cannot  be  estim- 
ated, entirely,  in  dollars  and  cents. 


WORKMEN'S  COMPENSATION  LAW  9 

Necessity  for  Safety  First 

When  the  appalling  number  of  industrial  accidents  is  considered  the 
necessity  for  the  Safety  First  movement  is  convincingly  apparent.  A 
multitude  of  strong  men  are  each  year  being  rendered  useless  to  the 
community  and  non-supporting  to  themselves  and  families  as  a  result  of 
industrial  accidents.  The  toll  in  death,  in  permanent  disability  and  tem- 
porary loss  of  time,  with  suffering  arid  want  as  the  attendant  on  mis- 
fortune, is  startingly  large.  The  propaganda  of  Safety  First  has  been 
so  widely  diffused  that  people  everywhere  know  what  it  means.  The 
agencies  teaching  the  principles  of  this  life  saving  creed  are  the  insurance 
companies  and  the  large  individual  employers  of  labor.  It  is  gratifying 
to  think  of  the  work  that  is  being  accomplished  along  this  line.  The 
result  is  so  apparent  that  every  employer  of  any  considerable  number  of 
men  remarks  on  its  wonderful  results.  Even  in  remote  logging  camps 
where  accidents  are  only  occasionally  reported,  and  where  doctors  are  not 
immediately  available,  in  response  to  the  question,  "Was  medical  aid 
furnished  by  you?"  the  answer  is  written  in,  "First  Aid  service  at  camp." 
Wherever  "First  Aid"  is,  "Safety  First"  has  been  there. 

Safety  Appliance 

It  is  hardly  necessary  to  refer  to  the  objective  of  safety  appliances. 
The  state,  in  its  mature  judgment,  as  voiced  by  its  legislature,  should 
make  certain  requisitions  on  employers  operating  hazardous  industries. 
It  should  impose  obligations  to  see  that  these  requisitions  are  met.  Safety 
appliances  wherever  possible  must  be  installed.  The  state's  interest  in 
this  subject  is  ostensibly  one  of  economic  value,  yet  everyone  knows,  who 
has  given  public  movements  a  moment's  thought  that  back  of  every  law 
like  this  is  the  sentiment  of  humanity  dwelling  in  the  public  heart.  To 
protect  human  life  and  guard  against  injury  to  body  and  limb  are  cardinal 
elements  in  human  life  itself.  The  necessity  for  collective  co-operation 
is  so  urgent  and  appalling  in  this  age  of  tremendous  operations  that  the 
individual  is  being  looked  after  by  the  public.  The  body  politic,  which 
has  heretofore  been  considered  an  individual  without  soul  or  sentiment, 
has  developed  into  an  entity  possessing  all  these  attributes  which  dis- 
tinguish man  from  the  brute  creation.  Therefore  the  public  in  the  great 
industrial  world  is  solicitious  regarding  the  safety  of  its  individual.  It 
goes  with  him  into  the  mines  and  insists  that  rational  condtions  must  be 
maintained;  that  avenues  of  escape  must  be  provided  for  in  case  of  un- 
expected calamity.  It  accompanies  him  to  the  mills,  smelters,  workshops 
and  logging  camps  and  waits  until  safety  appliances  are  installed  to 
guard  the  thoughtless  and  unwary  from  the  exposed  belts,  shaftings, 
gearings,  pulleys,  saws  and  protruding  set  screws. 


10  STATE  DEPARTMENT  OP  LABOR 

Duty  of  Employe 

The  wisdom  of  guarding  and  protecting  dangerous  features  in  the 
industrial  plants,  is  very  apparent  from  the  view-point  of  the  employer 
and  should  also  be  endorsed  and  assisted  in  by  the  employe.  For  while 
pecuniary  compensation  relieves  the  injured  workman  and  his  dependents 
from  actual  want  and  prevents  them  from  becoming  a  burden  on  society, 
yet  it  does  not  restore  a  life  or. rebuild  a  broken  frame.  Prevention 
of  the  accident  is  far  better  than  any  possible  assistance  after  the  acci- 
dent has  occurred.  Precaution  is  less  burdensome  than  regret.  There 
is  beyond  the  question  of  "Safety  Provisions"  a  pronounced  obligation 
on  the  part  of  the  employe  to  reduce  or  eliminate  the  possibility  of  pre- 
ventable accidents.  To  the  workman  the  preservation  of  life  and  limb 
should  be  an  ever  present  influence  to  stimulate  caution.  This  should  be 
a  personal  matter  with  thoughtful  men  in  every  kind  of  employment. 
Familiarity  with  danger  too  often  results  in  the  relaxation  of  caution 
with  the  result  that  accidents  happen  that  could  have  been  avoided.  The 
employe  should  at  all  times  be  cautious,  with  mind  and  thought  constantly 
alert  to  prevent  the  accidents  which  so  often  occur  from  thoughtlessness 
and  carelessness. 

» 

The  Law's  Operation  and  Application 

During  the  year  ending  November  30,  1915,  there  were  approxi- 
mately 8,000  reports  of  accidents  filed  in  the  State  Department  of  Labor. 
This  number  is  admittedly  far  short  of  the  number  of  work  accidents 
which  should  have  been  reported  to  the  department.  Crude  and  totally 
inadequate  blanks  for  reporting  accidents  under  the  compensation  law 
were  put  into  circulation  soon  after  the  law  became  effective.  These 
blanks  furnished  none  of  the  information  essential  if  an  intelligent  resume 
of  the  operations  of  the  law  was  to  be  assembled  and  published.  New 
blanks  were  prepared  and  furnished.  The  change  of  blanks  caused  mis- 
understandings and  delays  in  making  reports,  and  the  result  has  been 
that  many  of  the  reports  now  on  file  contain  no  information  which  may 
be  of  service  in  tabulating  the  operations  of  the  first  year  of  the  "Work- 
men's Compensation  Law  of  1913."  Many  employers  who  have  carried 
their  own  insurance  have  settled  work  accidents  suffered  by  their  em- 
ployes under  the  provisions  of  the  compensation  law,  but  have  failed  and 
neglected  to  make  the  reports  to  the  department.  Several  of  the  insurance 
companies  are  likewise  guilty  of  neglect  in  reporting  all  of  the  cases 
which  they  have  settled  under  their  policies.  This  makes  the  assembling 
of  data  and  statistics  difficult. 

The  Nebraska  compensation  law  needs  amending  in  many  instances. 
The  more  specific  suggestions  for  amendments,  as  time  and  experience 
will  suggest,  will  be  more  fully  covered  in  the  biennial  report  of  this 
department.  But  the  need  of  some  method  of  administration  is  so  ap- 
parent that  this  preliminary  report  of  the  operation  of  the  law  would 
be  incomplete  without  calling  attention  to  the  need.  Under  the  com- 


WORKMEN'S  COMPENSATION  LAW  11 

pensation  law  as  it  now  reads  settlements  may  be  made  between  the 
parties.  If  they  cannot  agree  then  the  controversy  may  be  submitted  to 
mutual  arbitration.  If  mutual  arbitration  cannot  be  agreed  upon,  then 
the  matter  is  submitted  to  a  court  of  equity.  Under  this  method  of 
settlements  many  injured  employes  are  at  the  mercy  of  the  employers 
and  the  representatives  of  insurance  companies.  There  are  a  large  num- 
ber of  reports  on  file  in  the  department  of  labor  which  on  the  face  of 
the  report  show  that  the  employe  has  not  received  the  full  amount  of 
benefits  to  which  he  is  entitled.  The  injured  employe  does  not  understand 
sufficiently  just  what  his  rights  are  and  to  avoid  the  expense  of  legal 
advice  he  submits  oftentimes  to  a  settlement  which  is  far  from  what 
the  law  authorizes.  The  purpose -of  the  compensation  law  is  to  get  relief 
to  the  injured  employe  and  his  family  when  that  relief  is  needed  and 
without  long  drawn  out  negotiations  and  litigation.  The  representative 
of  the  insurance  company  too  often  knows  the  immediate  ned  of  relief  of 
the  injured  employe  and  proceeds  to  negotiate  and  consume  time  before  a 
settlement  is  proffered.  The  pressing  needs  of.  the  injured  employe  and 
his  family  often  under  the  present  method  of  settlement  necessitates 
an  acceptance  of  terms  of  settlement  not  in  accord  with  the  provisions 
of  the  law.  The  employer  pays  a  premium  to  the  insurance  company  on 
the  theory  that  the  injured  employe  and  his  dependents  will  be  com- 
pensated according  to  the  provisions  of  the  law,  and  that  there  is  to  be 
no  sharp  practice  or  shaving  down  of  these  settlements  as  to  benefits. 
The  law  must  be  so  amended  that  there  will  be  some  board  or  some  in- 
dividual clothed  with  sufficient  judicial  powers  that  an  immediate  order 
may  be  made  covering  each  accident.  Compliance  with  this  order  or  find- 
ing should  be  enforced  during  a  review  by  a  court  of  equity,  if  such 
review  be  desired  by  either  party. 

The  fact  that  nineteen  states  out  of  thirty-one,  which  have  com- 
pensation laws,  have  adopted  the  two,  weeks'  waiting  period,  does  not 
necessarily  establish  the  wisdom  of  allowing  that  Jength  of  time  for  an 
injury  to  develop  and  determine  if  it  justifies  payment  of  compensation. 
The  Colorado  compensation  law  provides  a  waiting  period  of  twenty-one 
days  and  the  Federal  statute  contains  a  provision  for  fifteen  days.  Six 
states  have  a  waiting  period  of  one  week,  two  states  have  ten  days. 
Oregon,  Washington  and  Vermont  have  no  waiting  period.  Nebraska  and 
Nevada  have  waiting  periods  of  two  weeks,  and  if  disability  extends 
beyond  eight  weeks,  the  compensation  is  paid  from  the  date  of  the  in- 
jury. Wisconsin  has  a  waiting  period  of  one  week,  and  pays  compensa- 
tion from  date  of  injury  in  the  event  of  disability  extending  beyond  four 
weeks.  Illinois  has  a  waiting  period  of  six  days. 

The  fact  that  there  are  few  specific  amounts  set  out  in  the  Ne- 
braska law  for  certain  injuries  justifies  the  shortening  of  the  waiting 
period.  Many  of  the  reports  filed  in  the  department  of  labor  furnish 
ample  argument  for  the  change.  Take  the  loss  of  a  finger,  the  loss  of 
a  toe.  Quite  often  the  employe  suffers  an  injury  which  causes  the  ampu- 
tation of  a  finger  or  toe  and  is  able  to  return  to  his  employment  within 
the  fourteen  days  waiting  period  and  therefore  receives  no  compensation 


12  STATE  DEPARTMENT  OF  LABOR 

for  the  dismemberment.  A  careful  examination  of  the  reports  filed  under 
the  Nebraska  compensation  law  indicates  the  justice  of  changing  the 
waiting  period  in  the  law  to  seven  days.  The  primary  purpose  of  com- 
pensation laws  is  to  compensate  the  injured  employe  for  lost  earning 
power,  and  the  waiting  period  is  established  to  discourage  malignering. 
Whatever  the  period  of  waiting  may  be  the  injured  employe  must  bear 
the  total  of  the  lost  earning  power. 

There  were  2,222  complete  reports  filed  under  the  Nebraska  law 
for  the  first  year  of  its  operation.  Out  of  this  total  1,617  were  cases 
in  which  there  was  no  compensation  paid  and  605  in  which  compensation 
was  paid.  The  average  number  of  days  lost  by  the  injured  employe  in 
compensation  cases  was  19.4,  while  the  average  number  of  days  lost  by 
the  injured  employe  in  non-compensation  cases  was  3.1.  Practically  27 
per  cent  of  the  total  number  of  completed  cases  were  compensation  cases. 
This  leaves  over  70  per  cent  of  the  work  accidents  in  which  the  injured 
employe  must  assume  the  total  lost  earning  power  by  reason  of  the  two 
weeks  waiting  period.  This  is  not  an  equitable  division  of  the  time  pre- 
sumed to  be  necessary  in  order  to  wait  out  the  effects  and  results  of  the 
injury  in  order  to  determine  whether  the  injury  is  one  in  which  com- 
pensation should  be  paid  or  whether  the  injured  employe  is  guilty  of 
malignering. 

The  purpose  of  a  waiting  period  is  of  course  two-fold — to  relieve  the 
administration  of  a  compensation  act  from  the  burden  and  confusion  of 
payments  for  trifling  injuries,  and  to  eliminate  as  far  as  possible  the  danger 
of  malignering,  that  might  arise  with  no  waiting  period.  With  the  wages 
and  cost  of  living  at  their  present  levels,  a  very  large  number  of  families 
are  necessarily  living  from  hand  to  mouth,  and  in  all  such  cases  fourteen 
days  without  compensation  in  time  of  accident  to  the  breadwinner  causes 
real  hardships.  There  seems  to  be  good  reasons  for  reducing  the  waiting 
period  to  seven  calendar  days. 

Medical  Attention 

Section  111  of  the  Workmen's  Compensation  law  reads  as  follows: 
Sec.  111.  During  the  first  twenty-one  days  after  disability  begins 
the  employer  shall  be  liable  for  reasonable  medical  and  hospital  services 
and  medicines  as  when  needed,  not  however  to  exceed  two  hundred 
dollars  in  value,  unless  the  employe  refused  to  allow  them  to  be  furnished 
by  the  employer.  Provided,  however,  where  the  injured  employe  refuses 
or  neglects  to  avail  himself  of  such  medical  or  surgical  treatment,  the 
employer  shall  not  be  liable  for  any  aggravation  of  such  injury  due  to 
said  neglect  or  refusal. 

An  adherence  to  the  provisions  of  this  section  works  many  incon- 
sistencies and  results  in  an  injustice  to  the  injured  employe  in  many 
cases.  An  employe  receives  an  injury  which  upon  the  first  examination 
by  the  physician  is  deemed  not  very  serious.  But  the  injury  becomes 
serious,  in  that  blood  poison  sets  in.  The  attending  physician  applies 
all  his  skill  to  prevent  serious  results,  but  to  no  avail.  Amputation  is, 


WORKMEN'S  COMPENSATION  LAW  13 

necessary.  The  twenty-one  days  have  elapsed  in  the  meantime.  Strictly 
following  the  section  of  the  law  the  employer  or  insurance  company 
are  not  liable  for  any  part  of  the  $200  maximum  for  medical  attention 
or  hospital  services  necessary  after  the  twenty-one  days  have  elapsed.  The 
amputation,  necessitating  surgical  skill  and  hospital  services,  is  a  direct 
result  of  the  injury  suffered  in  the  course  of  employment.  The  employe 
must  bear  all  of  the  cost  of  the  amputation.  Again,  a  workman  while 
operating  a  lathe  receives  a  piece  of  steel  in  the  eye.  The  physician  hesi- 
tates to  use  the  knife  in  removing  the  piece  of  steel  from  the  eye,  hoping 
that  it  will  work  its  way  to  a  point  where  it  may  be  removed  without 
an  operation  and  thus  avoid  the  danger  of  loss  of  eyesight.  But  the 
physician's  hopes  are  not  realized.  An  operation  is  necessary.  The  twenty- 
one  days  have  elapsed  in  the  meantime.  The  employer  or  the  insurance 
company  are  not  responsible  for  the  cost  or  any  part  of  the  cost  of  the 
operation  for  the  reason  that  it  was  after  twenty-one  days,  though  the 
operation  was  a  direct  result  of  the  injury  received  in  the  course  of  em- 
ployment. There  are  an  endless  number  of  these  illustrations.  And  in 
each  the  attending  physician  uses  his  knowledge  and  skill  to  save  the  in- 
jured employe  the  necessity  of  a  dismemberment  and  the  dangers  incident 
to  an  operation,  and  the  employer  the  loss  of  an  employe  and  the  money 
cost  of  dismemberments  and  operations.  The  twenty-one  days'  limitation, 
should  be  striken  out  of  the  law.  Possibly  a  more  reasonable  limitation: 
may  be  inserted,  but  it  is  doubtful  whether  there  should  be  any  limitation, 
as  to  time. 

Graduated  Benefits 

The  Nebraska  compensation  law  provides  that  where  a  deceased  em- 
ploye leaves  a  widow  wholly  dependent  upon  him  for  support,  and  under 
the  provision  of  the  law  a  wife  is  presumed  to  be  wholly  dependent  upon 
a  husband  with  whom  she  is  living  at  the  time  of  the  accident,  shall  re- 
.ceive  50  per  cent  of  his  wages  for  a  period  of  350  weeks,  subject  to  a 
maximum  of  $10  and  a  minimum  of  $5  per  week.  The  number  of  de- 
pendent children  does  not  increase  or  decrease  the  amount  of  the  com- 
pensation. Several  of  the  states  have  provisions  that  the  compensation 
payable  to  a  widow  shall  be  graduated  according  to  the  number  of  de- 
pendent children.  If  there  be  no  dependent  children  then  the  widow 
shall  receive  30  or  40  per  cent  of  the  weekly  wage  of  her  deceased  hus- 
band. But  if  there  be  dependent  children  then  the  percentage  shall  in- 
crease for  each  child  until  a  reasonable  maximum  percentage  has  been 
reached,  the  weekly  payments  on  account  of  each  child  to  continue  until 
the  child  has  reached  an  employable  age.  There  seems  to  be  no  need  of 
any  reason  or  argument  why  such  an  amendment  should  not  be  made 
to  the  compensation  law.  True,  if  the  widow  alone  is  to  be  considered 
then  there  would  be  no  difference  in  the  lost  earning  power  of  a  deceased 
husband.  But  if  the  dependent  children  are  to  be  taken  into  account  the 
widow  with  children  has  suffered  a  greater  loss  and  handicap  than  the 
childless  widow.  The  lost  earning  power  of  a  deceased  husband  mean& 
more  to  a  widow  with  children  than  it  does  to  a  childless  widow. 


14  STATE  DEPARTMENT  OF  LABOR 

Administration 

Contrary  to  a  large  majority  of  the  compensation  states,  the  Nebraska 
law  provides  no  machinery  for  the  administration  of  the  compensation  law. 
The  law  provides  rules  in  accordance  with  which  settlements  are  supposed 
to  be  made  between  the  employer  and  the  employe.  But  in  actual  practice 
these  settlements  are  made  between  the  insurance  company  and  the  em- 
ploye. Only  when  no  satisfactory  settlement  can  be  reached  is  the  state 
brought  into  the  matter,  by  a  petition  to  a  court  of  equity,  or  which  there 
are  many  in  the  state.  The  court  is  required  to  hear  such  witnesses  as  are 
presented  and  in  a  summary  manner  decide  the  merits  of  the  controversy. 

Under  this  system  one  of  the  important  purposes  of  a  workmen's 
compensation  law,  the  making  accessible  of  full  and  complete  relief  for  the 
injured  employe  or  his  dependents  at  the  time  most  needed,  is  to  a  large 
degree  defeated. 

The  administration  of  a  compensation  law  through  the  courts,  a 
number  of  separate  and  scattered  tribunals  already  overburdened  by  their 
ordinary  business  and  more  or  less  likely  to  be  unfamiliar  with  the  lav/, 
results  harmful  in  that  serious  delays  occur,  unnecessary  fees  paid  to 
attorneys  and  court  costs  eat  up  a  large  portion  of  awards,  settlements  in 
violation  of  the  law  are  frequently  sanctioned  by  the  courts  or  even  ordered 
by  them  on  their  own  initiative,  conflicting  opinions  are  handed  down,  con- 
fusing and  complicating  the  whole  system  and  making  justice  a  matter 
of  location,  not  of  law.  The  delay  and  expense,  the  unequal  footing  of  the 
parties  in  the  courts,  and  unfamiliarity  with  and  inherent  fear  of  court 
procedure,  all  operate  to  defeat  the  very  purpose  of  a  compensation  law. 

The  purpose  and  ends  of  compensation  laws  are  founded  in  a  broader 
conception  of  the  inter-relationship  existing  between  the  employer,  whose 
enterprise  and  capital  are  invested,  and  the  employe,  whose  labor  is  neces- 
sary to  make  that  investment  profitable.  Their  interests  are  identical  and 
neither  should  be  discriminated  against  to  the  extent  of  being  forced  to 
bear  the  entire  loss  attending  industrial  accidents  occurring  in  the  opera- 
tion of  industries  in  which  they  are  jointly  engaged.  The  conclusion  is 
inevitable  that  equal  justice  to  all  require  that  the  industry  shall  bear 
the  expense  of  accidents  incident  to  its  operation.  With  this  thought 
firmly  fixed  there  will  follow  a  strenuous  and  combined  effort  to  prevent 
industrial  accidents,  which,  after  all,  is  more  to  be  sought  than  any  pay- 
ment of  compensation.  The  doctrine  that  an  employer,  or  the  product 
that  he  is  manufacturing  or  the  business  in  which  he  is  engaged,  shall 
be  responsible  for  the  cost  of  injuries  occurring  to  workmen,  without 
any  consideration  as  to  where  the  fault  may  lie,  is  practically  a  reversal 
of  the  common  law  rules  governing  statutory  liability  of  employers.  With 
the  certainty  that  every  industrial  accident  will  call  for  the  payment  of 
money  the  employer  seeks  to  distribute  the  money  cost  as  a  part  of  the 
selling  price  of  his  products.  There  are  some  employers  who  are  unable 
to  make  such  distribution  by  reason  of  fixed  selling  prices  and  statute 
limitations  and  competition.  To  protect  himself  against  the  money  cost 
•of  industrial  accidents  the  employer  pays  a  premium  to  an  insurance 


WORKMEN'S  COMPENSATION  LAW  15 

company  to  carry  the  risk.  The  employer  pays  for  the  full  benefits 
running  to  the  injured  employe  or  his  dependents  and  should  feel  and 
know  that  these  benefits  have  been  received  by  the  employe  or  his  de- 
pendents. The  injured  employe  or  his  dependents  is  entitled  to  these 
benefits  as  a  matter  of  right. 

There  is  an  old  saying  that  you  can  lead  a  horse  to  water  but  you  can't 
make  him  drink.  There  are  some  employers  and  some  insurance  companies, 
as  the  first  year's  operation  of  the  law  has  amply  shown,  who  need  force- 
ful direction  and  orders  to  make  them  do  the  things  that  the  law  re- 
quires them  to  do.  Mutual  settlements  of  industrial  accidents  is  not 
practical  or  has  not  proven  to  have  been  feasible  or  adequate.  There  must 
be  some  board  or  individual  which  has  the  authority  to  supervise  and 
administer  the  compensation  law,  to  the  end  that  the  injured  employe  and 
his  dependents  receive  what  the  law  provides  that  he  shall  receive.  Mutual 
settlements  between  the  parties  defeats  the  purpose  of  a  compensation 
law  by  reason  of  not  getting  the  relief  to  the  injured  employe  and  his 
dependents  quickly  and  without  unnecessary  waits  resulting  from  nego- 
tiations and  disagreements  between  parties.  Some  method  of  directing 
settlements  and  determining  the  rights  of  parties  must  be  provided.  Re- 
ports as  filed  in  the  state  department  of  labor  for  the  past  year  show 
that  a  large  per  cent  of  the  industrial  accidents  have  not  been  settled 
according  to  the  provisions  of  the  law  simply  because  there  was  no  mode 
of  direction  and  supervision  of  these  settlements.  The  money  loss  in 
most  every  case  in  which  the  settlement  has  not  been  in  accord  with  the 
provisions  of  the  law  has  been  borne  by  the  injured  employe  and  his  de- 
pendents. This  condition  of  affairs  must  be  changed  if  society  is  to  do 
its  full  duty  to  the  men  and  women  who  suffer  industrial  accidents. 

Section  123  of  the  compensation  law  reads  as  follows:  "No  policy 
of  insurance  against  liability  under  this  article  shall  be  made  unless  the 
same  shall  cover  the  entire  liability  of  the  employer  thereunder  and  shall 
contain  an  agreement  by  the  insurer  that,  in  case  the  employer  shall  be 
or  become  insolvent,  or  in  case  an  execution  upon  a  judgment  for  com- 
pensation is  returned  unsatisfied,  an  employe  of  such  employer  or  the 
dependents  of  a  deceased  employe  who  shall  be  entitled  to  compensation 
under  this  article  may  enforce  their  claim  or  claims  to  compensation 
against  the  insurer  to  the  same  extent  that  the  employer  could  have  en- 
forced his  claim  against  such  insurer  had  he  paid  compensation.  No  suit 
shall  be  maintained  for  the  collection  of  premiums  upon  any  such  policy 
of  insurance,  unless  such  covenant  is  contained  in  said  policy.  No  com- 
pany or  association  shall  enter  into  any  such  contract  for  insurance  unless 
such  insurer  shall  have  been  approved  by  the  state  insurance  commis- 
sioner as  provided  by  law. 

Under  this  section  the  insurance  company  is  bound  to  pay  the  total 
liability  of  the  employer  under  the  provisions  of  the  compensation  law. 
The  insurance  company  collects  a  premium  based  on  the  theory  that 
such  payments  shall  be  made.  Settlement  for  work  accidents  according 
to  the  provisions  of  the  compensation  law  is  a  part  of  the  contract  of 
employment  entered  into  by  and  between  the  employer  and  employe.  The 


16  STATE  DEPARTMENT  OF  LABOR 

employer  has  not  kept  his  contract  of  employment  unless  he  insists  that 
the  insurance  company  pay  to  the  injured  employe  or  his  dependents 
all  the  benefits  set  forth  in  the  compensation  law.  Any  other  settlement 
secured  by  an  insurance  company  with  an  injured  employe  or  his  depend- 
ents not  only  does  the  employe  an  injustice  and  withholds  from  him  his 
legal  rights,  but  is  a  breach  of  the  contract  of  employment. 

An  employer  who  buys  insurance  from  an  insurance  company  not 
licensed  to  do  business  in  Nebraska  is  not  carrying  out  the  plain  pro- 
visions of  the  law,  and  is  not  giving  the  employe  the  protection  against 
the  employer's  insolvency  which  the  law  intended  should  be  given. 

The  Problem  of  the  Minor 

The  minor  who  receives  a  serious  and  permanent  disability  injury 
presents  a  problem  only  partially  solved  through  the  continuance  of  the 
weekly  payments  provided  by  the  compensation  law.  These  payments 
should  be  sufficient  to  permit  the  minor  to  obtain  special  training  along 
technical  or  commercial  lines  and  thereby  become  fitted  for  remunerative 
wage-earning  work  in  the  future. 

A  boy  of  sixteen,  left  with  one  arm,  who  was  earning  $3  or  $4 
a  week  at  the  time  of  his  injury,  can  be  provided  with  employment  paying 
the  same  rate  of  wages  that  he  was  earning  when  the  injury  occurred. 
Usually  such  employment  offers  the  minor  no  prospect  of  an  improve- 
ment in  his  earning  capacity,  and  full  justice  is  not  done  him  under  the 
provisions  of  the  compensation  law. 

There  should  be  a  provision  in  the  compensation  law  which  will  give 
the  minor  who  earns  a  low  rate  of  wages  and  who  receives  permanent 
injuries  a  weekly  compensation  based  upon  his  probable  earning  capacity 
at  the  time  he  attains  the  age  of  twenty-one.  Such  a  statute  has  been 
in  effect  in  England  since  1906,  the  English  law  providing  that  "during 
total  incapacity  of  a  workman  who  is  under  twenty-one  years  of  age 
at  the  date  of  the  injury,  and  whose  average  weekly  earnings  are  less  than 
20  shillings,  100  per  cent  shall  be  substituted  for  50  per  cent  of  his  aver- 
age weekly  earnings,  but  the  weekly  payments  shall  in  no  case  exceed  10 
shillings." 

It  might  be  possible  to  work  out  a  solution  of  the  problem  of  the  minor 
if  it  was  provided  that  in  such  a  case,  if  a  minor  received  a  personal  injury 
which  permanently  incapacitates  him,  in  whole  or  in  part,  it  shall  be  con- 
clusively presumed  that  his  average  weekly  wages  are  not  less  than  $12. 

Compensation  for  Public  Employes 

Section  106  of  the  compensation  law  reads   as  follows: 
Section    106.      The    terms    'employe'    and   'workman'    are    used    inter- 
changeably and  have  the  same  meaning  throughout  this  article;  the  said 
terms  include  the  plural  and  all  ages  and  both  sexes,  and  shall  be  con- 
strued to  mean: 


WORKMEN'S  COMPENSATION  LAW  17 

(1)  Every  person  in  the  service  of  the  state  or  of  any  governmental 
agency  created  by  it,  under  an  appointment  or  contract  of  hire,  express 
or  emplied,  oral  or  written,  but  shall  not  include  any  official  of  the  state, 
or  any  governmental  agency  created  by  it,  who  shall  have  been  elected 
or  appointed  for  a  regular  term  of  office,  or  to  complete  the  unexpired 
portion  of  any  regular  term. 

The  intent  of  the  legislature  seems  to  be  plainly  set  out  in  the  above 
section  that  all  employes  of  the  state  or  of  any  municipal  subdivision  of 
the  state  are  under  the  compensation  law  unless  an  election  to  the  con- 
trary has  been  filed  with  the  insurance  commissioner.  The  distinction 
is  made  as  to  the  use  of  the  word  "employe"  and  the  word  "workman" 
from  the  general  meaning  attached  to  the  word  in  its  everyday  use.  A  state 
treasurer  is  primarily  an  employe  of  the  state,  but  is  designated  in  the 
statute  as  an  officer.  One  who  is  appointed  to  fill  an  office  for  which  there 
is  a  statutory  term  of  service  provided  is  termed  an  officer.  One  who  is 
elected  to  fill  or  appointed  to  complete  a  term  of  office  for  which  there  is 
statutory  definiteness  as  to  time  of  service  would  be  an  officer  and  not 
an  employe  or  workman,  and  therefore  would  not  be  under  the  compen- 
sation law.  But  employes  of  the  state  and  employes  of  municipal  sub- 
divisions of  the  state,  including  sanitary  districts,  drainage  districts,  school 
districts,  and  all  employes  of  municipalities  not  elected  or  appointed  to 
an  office  created  by  statute  with  definite  terms  of  service,  would  be  under 
the  provisions  of  the  compensation  law. 

The  members  of  the  state  militia  should  be  brought  under  the  com- 
pensation law.  It  is  a  common  custom,  and  a  right  one,  too,  when  a 
member  of  the  state  militia  is  injured  while  executing  the  orders  of  his 
superior  officer,  or  as  a  matter  of  fact  "while  in  the  course  of  his  em- 
ployment" suffers  an  injury  that  the  injured  employe  or  his  dependents 
present  a  claim  to  the  legislature,  and,  after  traveling  the  rocky  road  which 
most  such  claims  must  travel,  the  claim  is  finally  allowed  at  the  end  of 
two  or  three  years  waiting.  The  amount  of  the  award  is  not  based  on 
any  fixed  method  of  ascertaining  lost  earning  power,  but  is  based  on  the 
sympathy  of  the  members  of  the  claims  committee  and  the  members  of 
the  house  and  senate.  An  injustice  is  sometimes  done  the  state  in  grant- 
ing the  larger  amount  as  well  as  the  employe  who  is  granted  the  smaller 
amount. 

Compulsory  or  General  Law 

The  theory  upon  which  the  modern  method  of  workmen's  compensation 
for  injuries  received  in  the  course  of  employment  must  rest  is  that  it  is 
just  and  reasonable  that  employes,  or  their  dependents,  should  be  paid 
compensation  for  such  injuries  from  the  business  in  which  they  are  re- 
ceived, and  that  it  is  not  just,  or  a  wise  social  policy,  to  leave  employes 
who  are  thus  injured,  or  their  dependent  families,  to  destitution,  or  the 
inadequate  aid  of  organized  and  unorganized  charity. 

Chapter  67,  Section  10,  of  the  laws  of  Nebraska,  adopted  in  1911,  pro- 
Tide  that  owners  and  superintendents  of  all  factories,  workshops,  mills 


18  STATE  DEPARTMENT  OF  LABOR 

or  mechanical  establishments  shall  report  all  fatal  accidents  and  all  acci- 
dents which  cause  the  injured  employe  to  lose  more  than  fourteen  days, 
to  the  state  department  of  labor.  All  accidents  suffered  by  railway  em- 
ployes and  all  accidents  suffered  by  patrons  of  railway  companies  must 
be  reported  to  the  state  railway  commission.  All  accidents  suffered  by 
employes  under  the  compensation  law  must  be  reported  to  the  state  de- 
partment of  labor.  These  and  other  methods  of  gathering  data  declare 
the  state's  concern  with  all  such  injuries,  their  cause  and  results.  It  is  a 
shock  to  one's  sense  of  justice  that*  when  many  injuries  thus  reported  are 
investigated,  it  is  found  that  no  compensation  can  be  obtained  by  the 
injured  for  their  incapacities,  or  by  their  dependent  families,  in  case  of 
death — whereas  in  other  cases,  under  like  circumstances  and  conditions, 
compensation  is  provided.  This  is  due  to  the  fact  that  the  Nebraska  com- 
pensation law  is  an  elective  act,  so  called,  and  not  a  general  law,  uniform 
in  its  application. 

The  bad  effects  of  this  system  of  discrimination  is  not  only  unjust 
to  the  injured  persons  and  their  families,  but  to  society  in  general.  In- 
stances of  this  injustice  are  many  and  appear  through  children  in  the 
schools,  in  the  work  of  charities,  and  in  cases  reported  to  the  state  depart- 
ment of  labor  when  it  is  learned  that  the  employers  have  either  rejected 
or  are  not  under  the  compensation  law. 

One  of  the  first  essentials  of  law  is  that  it  should  apply  equally  to  all. 
"Equality  before  the  law."  The  Nebraska  compensation  law  should  be 
so  amended  as  to  make  it  a  general  law,  applying  to  all  employers  and 
employes  and  their  dependents,  within  the  classes  mentioned  in  the  com- 
pensation law.  If  a  constitutional  amendment  is  necessary  to  permit  the 
enactment  of  such  a  general  law,  proper  steps  for  such  an  amendment 
should  be  taken. 

To  avoid  any  misunderstanding  in  the  consideration  of  this  matter, 
it  should  be  remembered  that  the  words  "compulsory"  and  "elective"  which 
are  used  in  the  discussion  of  compensation  acts,  are  used  only  in  a  very 
technical  constitutional  sense.  A  general  law,  applying  as  here  mentioned, 
to  those  affected  by  occupational  injuries,  would  be  in  its  essential  nature 
no  more  compulsory  than  other  equal  and  general  laws. 

The  Nebraska  compensation  law  should  be  so  amended,  as  to  include 
all  employers  of  one  or  more  employes. 

Fatal  Accidents 

Only  six  fatal  accidents  have  been  fully  reported  to  the  department 
of  labor.  There  are  several  fatal  accidents  under  the  compensation  law, 
which,  owing  to  the  fact  that  the  employer  and  the  insurance  company 
have  not  made  a  complete  report  to  the  department,  are  not  included  in 
the  summary  showing  the  fatal  accidents  under  the  law  for  the  year  just 
closed.  Until  some  board  or  individual  is  clothed  with  sufficient  authority 
to  direct  and  administer  the  compensation  law  this  haphazard  method 
must  continue  to  prevail. 

According  to  the  information  given  in  the  report  of  these  six  fatal 


WORKMEN'S  COMPENSATION  LAW  19 

accidents,  they  are  classified  as  to  fault  as  follows:  Two,  incident  to 
employment;  three,  fault  not  placed,  and  one,  the  fault  of  the  employer. 
It  will  be  noted  that  the  two  cases  in  which  the  fault  was  not  placed  upon 
the  employer  nor  the  employe,  but  simply  accidents  which  just  seem  to 
have  to  happen,  the  beneficiaries  received  $2,500  in  each  instance.  But 
in  the  three  cases  in  which  the  fault  could  not  be  placed  from  the  in- 
formation given  in  the  reports,  the  representative  of  the  employer  or  the 
insurance  company  was  able  to  strike  a  much  better  bargain  as  to  money 
terms  of  settlement,  and  the  beneficiaries  of  each  one  of  these  three 
killed  employes  received  $731.39.  In  the  one  case  in  which  the  fault 
was  plainly  that  of  the  employer  a  settlement  and  release  was  secured 
from  the  beneficiaries  for  the  sum  of  $2,054.81. 

The  compensation  law  provides  that  the  payment  for  an  injury  re- 
sulting in  death  shall  be  50  per  cent  of  the  wages  received  by  the  em- 
ploye at  the  time  of  the  injury,  for  a  period  of  350  weeks,  subject  to  a 
maximum  payment  of  $10  per  week  and  a  minimum  of  $5  per  week.  In 
each  one  of  the  cases  included  in  the  table  the  employe  was  receiving  the 
maximum  wage.  This  would  entitle  the  beneficiaries  to  $3,500  in  each 
case,  with  $100  additional  as  a  burial  benefit.  There  is  no  provision  in 
the  compensation  law  for  any  method  of  settling  a  fatal  accident  except 
that  the  provisions  of  the  law  be  followed,  provided  employer  and  employe 
are  under  the  compensation  law.  An  employe  under  the  compensation 
law  cannot  waive  its  provisions  before  the  accident  happens.  But  after 
the  accident  he  or  his  beneficiaries  may  settle  according  to  his  or  their 
own  needs  and  notions.  In  the  absence  of  some  specific  method  of  direct- 
ing and  supervising  settlements  and  commutations  in  the  law  the  "needs" 
and  "notions"  of  the  injured  employe  and  his  beneficiaries  vary  and  the 
ever  present  desire  of  human  beings  to  strike  a  bargain  defeats  the  intent 
and  purpose  of  the  law,  and  the  widows  of  two  deceased  employes  who 
.received  the  same  maximum  wage  do  not  receive  the  same  payments  in 
compensation. 

The  legislature  without  doubt  intended  that  the  widow  of  an  employe 
injured  in  the  course  of  his  employment  and  receiving  more  than  $20  per 
week,  should  receive  50  per  cent  of  his  wages  for  350  weeks,  or  $10  per 
week  for  350  weeks,  aggregating  $3,500,  plus  the  $100  as  a  burial  benefit. 
It  was  not  thought  best  that  the  widow  be  paid  the  total  amount  in  one 
payment  unless  and  until  the  district  court  found  that  the  best  interests 
of  the  widow  and  dependents  could  best  be  served  by  such  lump  sum  pay- 
ment. Plainly  stated,  the  legislature  never  intended  that  the  widow  and 
dependents  of  a  deceased  employe,  in  case  a  lump  sum  settlement  was 
permitted  by  the  district  court,  that  the  amount  of  money  received  by 
the  widow  and  "dependents  should  be  arrived  at  through  the  different  whims 
of  different  district  courts  and  the  ability  to  negotiate  a  bargain  by  dif- 
ferent employers  and  representatives  of  different  insurance  companies. 
The  widow  and  children  of  Jones  are  entitled  to  the  same  compensation 
for  the  loss  of  earning  power  of  a  husband  and  father  as  the  widow  and 
children  of  Smith,  provided  Jones  and  Smith  both  received  in  excess  of 
$20  per  week  at  the  time  of  the  injury  resulting  in  death. 


20 


STATE  DEPARTMENT  OF  LABOR 


The  state  must  provide  some  board  or  commission  or  individual  whose 
duty  it  will  be  to  protect  the  interests  of  all  parties  in  the  administration 
of  the  compensation  law. 

As  a  rule  compensation  claims  should  be  payable  as  annuities  and 
should  be  capable  of  commutation  to  a  lump  sum  payment  only  on  appli- 
cation of  either  party  to  some  board  or  commission  or  court.  Wage- 
i  o  rnera  or  the  dependents  of  wage-earners  are  too  often  little  used  to  the 
handling  of  large  sums  of  money  and  the  payment  in  the  form  of  an 
annuity  prevents  the  money  being  misappropriated.  But  there  are  cases 
where  the  possession  of  a  little  capital  will  enable  the  wage-earner  or  his 
dependents  to  become  self-sustaining  by  the  purchase  or  settling  up  of 
a  little  business.  In  these  cases  a  lump  sum  payment  should  be  made, 
and  the  board  or  commission  or  the  court  should  be  plainly  authorized  to 
order  such  lump  sum  payment  upon  the  application  of  either  party,  pro- 
vided it  be  found  to  be  to  the  best  interests  of  the  injured  employe  or  his 
beneficiaries. 

Fatal  Accidents 


Whose  Fault 

No. 
Cases 

Compen- 
1  sation 
Paid 

Medical 
Atten- 
tion 

Hospital 
Services 

Average 
Pay- 
ment 

Incident    to    employment 

2 

$5,000  00 

$2  500  00 

Fault   not   placed 

3 

2,194.17 

$30  00 

$95  00 

731  39 

Negligence   employer 

1 

2,054.81 

2.00 

2  054  81 

Totals  

6 

$9,248.98 

$32.00 

$95.00 

$1,041.46 

The  Nebraska  Law  Needs  Amending 

The  Nebraska  compensation  law  does  not  in  all  cases  furnish  adequate 
compensation  to  injured  workmen  or  their  dependents.  Moreover,  the  pay- 
ment of  compensation,  in  the  absence  of  any  method  of  administration, 
has  been  neither  prompt  nor  certain.  An  unnecessarily  large  amount  of 
benefits  both  to  employer  and  employe  have  been  wasted.  Some  of  the 
hostility  between  employer  and  employe,  and  some  of  the  waste  and  in- 
justice that  existed  under  the  old  liability  system  remain  because  too  many 
of  the  practices  under  the  old  system  will  remain  so  long  as  there  is  no 
adequate  method  of  administration.  Experience  in  other  states  has  shown 
that  these  evils  can  be  eliminated  by  an  adequate  compensation  scale,  and 
guarantee  of  reasonable  and  well  regulated  relief  when  needed,  through  the 
creation  of  a  supervising  authority  with  summary  power  in  the  admin- 
istration of  the  law,  and  settlement  of  disputes. 

Time  and  experience  have  suggested  needed  amendments  to  the  Ne- 
raska  compensation  law.  It  was  not  expected  that  the  first  attempt  to 
enact  the  principle  of  workmen's  compensation  into  the  statutes  of  Ne- 
braska would  be  final  and  the  last  word  in  the  matter,  but  time  and  ex- 
perience and  changed  conditions  point  out  the  changes  that  are  necessary 


WORKMEN'S  COMPENSATION  LAW  21 

if  the  principle  of  compensation  is  to  be  fully  made  a  part  of  the  law 
of  the  state.  Without  a  long  drawn  .out  discussion  of  the  causes  leading 
up  to  the  suggested  changes,  below  is  given  reference  to  those  that  are 
suggested  by  the  operation  of  the  compensation  law  during  the  first  year 
of  its  trial  in  Nebraska: 

Some  board  or  commission  or  individual  with  authority  to  supervise 
and  administer  the  law. 

Reduction  of  the  waiting  period  to  seven  days. 

Raising  the  maximum  from  $10  to  $12. 

Adding  the  finger  and  toe  schedule. 

Making  the  law  apply  to  employers  of  one  or  more  employes  instead 
of  five. 

Stating  more  clearly  the  rule  for  lump  sum  settlements. 

Making  the  law  apply  to  members  of  the  state  militia. 

Provisions  that  upon  the  application  of  either  party -the  court  may 
order  and  determine  matters  of  controversy  in  a  summary  manner. 

More  clearly  defining  the  provisions  as  to  minors. 

Giving  the  board  or  commission  or  some  individual  power  to  order 
a  lump  sum  settlement  upon  the  application  of  either  party,  with  right  of 
an  appeal  to  the  courts. 

Some  method  by  which  there  will  be  a  larger  degree  of  guaranteed 
solvency  of  the  employer  or  insurance  company. 

Requiring  all  settlements  and  releases  to  have  the  approval  of  some 
board  or  commission'  or  individual. 

Copies  of  all  releases  and  settlements  to  be  filed  with  some  court  or 
office  of  record. 

More  specific  and  stringent  state  laws  dealing  with  insurance  com- 
panies which  write  Nebraska  business  without  first  procuring  a  state 
license. 

Making  more  specific  and  certain  many  of  the  provisions  of  the  law 
to  the  end  that  misunderstandings  and  litigation  may  be  minimized. 

Graduate  benefits  according  to  number  of  children  until  a  reasonable 
maximum  percentage  is  reached. 

In  case  of  death  or  permanent  disability  reduce  the  number  of  weekly 
payments  by  increasing  the  per  cent. 

Requiring  the  insurance  commissioner  to  notify  the  board,  commission 
or  individual  charged  with  the  administration  of  the  law,  of  each  insur- 
ance company  licensed  to  write  compensation  insurance  under  the  law. 

Raise  the  percentage  from  50  per  cent  to  66%  per  cent. 

Making  payments  in  case  of  death  66%  per  cent  of  wages  for  312 
weeks  in  lieu  of  350  weeks. 

Penalize  employers  who  fail  to  provide  safety  devices  as  required  by 
the  state  law. 

More  clearly  define  what  constitutes  "lost  earning  power." 

Penalize  employers  and  insurance  companies  who  fail  to  report  all 
accidents  in  detail. 

Requiring  elections  under  the  law  to  be  filed  with  the  administrating 


22  STATE  DEPARTMENT  OF  LABOR 

commission,  board  or  individual  instead  of  with  the  insurance  commis- 
sioner. 

Adequate  appropriations  by  the  legislature  for  the  administration  of 
the  law. 

Providing  specific  benefits  for  the  larger  number  of  injuries. 

Raising  the  minimum  from  $5  per  week  to  $6  per  week. 

More  clearly  defining  the  waiting  period. 

Prohibiting  deductions  in  lump  sum  settlements. 

Domestic  and  Household  Servants 

Section  97  expressly  provides  that  the  Nebraska  compensation  act 
shall  not  apply,  among  other  classes,  to: 

(a)  Domestic  servants; 

(b)  Household  servants. 

The  term  "domestic  servant"  means  one  who  lives  and  works  in  the 
house  and  does  not  include  a  servant  whose  employment  is  out  of  doors 
and  not  in  the  house.  Bouvier  in  his  law  dictionary  says  that  the  term 
"domestic"  does  not  extend  to  workmen  and  laborers  employed  out  of 
doors.  Another  writer  has  said  that  domestic  servants  are  those  who 
receive  wages  and  stay  in  the  house  of  the  person  paying  and  employing 
them  for  their  services.  They  are  sometimes  referred  to  as  menial  servants, 
who  are  defined  as  persons  retained  by  others  to  live  within  the  walls  of 
the  house  and  to  perform  the  work  of  the  household. 

A  household  servant  is  a  servant  dwelling  under  the  same  roof  and 
under  circumstances  which  make  him  a  member  of  the  family.  The  word 
"household"  comes  from  the  Latin  word  "familia."  It  is  generally  used 
to  denote  persons  dwelling  together  and  composing  a  family.  Webster 
defines  the  household  as  those  who  dwell  under  the  same  roof  and  con- 
stitute a  family.  The  status  of  a  household  servant  is  determined  rather 
by  his  relation  to  the  family  than  by  the  character  of  the  service  which  he 
performs.  If  he  is  taken  into  the  family  and  occupies  a  relation  such 
that  he  could  properly  be  considered  a  member  of  that  household,  then 
he  could  with  propriety  be  considered  a  household  servant.  Private 
chauffeurs  do  not  occupy  this  close  relationship  with  the  employer.  He 
usually  lives  in  another  house  than  his  employer;  he  boards  at  a  different 
table;  his  laundry  is  done  at  a  public  laundry,  his  clothes  are  mended  at 
a  public  tailor  shop,  and  he  does  not  sustain  such  close  relationship  with 
the  employer  and  his  family  as  would  make  him  a  member  of  the  family. 

The  courts  have  frequently  decided  who  are  and  who  are  not  employes 
and  who  are  "servants,"  and  in  their  opinion  we  find  such  language  as 
the  following: 

"A  servant  is  one  who  is  employed  to  render  personal  service  to  his 
employer,  otherwise  than  in  the  pursuit  of  independent  calling,  and  who 
in  such  service  remains  entirely  under  the  control  and  direction  of  the 
latter,  who  is  called  his  master." 

"A  servant  is  one  who  does  work  under  the  direction  of  another, 
who  not  only  prescribes  to  the  workman  the  nature  of  his  work,  but  di- 


WORKMEN'S  COMPENSATION  LAW  23 

rects  his  time  as  any  moment  may  direct,  the  means  also,  or,  as  it  has  been 
put,  retains  the  power  of  controlling  the  work." 

"The  real  test  of  which  to  determine  whether  a  person  is  acting 
as  servant  of  another  is  to  ascertain  whether,  at  the  time  the  injury  was 
inflicted,  he  was  subject  to  such  person's  order  and  control  and  so  liable 
to  be  discharged  by  him  for  disobedience  of  orders  or  misconduct." 

"Within  the  ordinary  acceptation  of  the  term  one  who  is  engaged  to 
render  services  in  a  particular  transaction  is  not  an  employe.  The  word 
implies  continued  service  and  excludes  those  employed  for  a  single  trans- 
action." 

"The  term  'employe'  indicates  persons  hired  to  work  for  wages  as  the 
employer  may  direct,  and  does  not  embrace  the  acts  of  the  employment 
of  a  person  carrying  on  a  distinct  trade  or  calling  to  perform  services 
independent  of  the  control  of  the  employer." 

"An  employe  is  a  person  bound  in  some  degree  at  least  to  the  duties 
of  a  servant  and  not  a  mere  contractor  bound  only  to  produce,  or  cause 
to  produce  a  certain  result."  • 

In  the  case  In  re  Caldwell,  164  Fed.,  515,  the  court  held  that  musicians 
at  regular  wages  to  play  in  a  theater  or  other  place  are  "servants"  within 
the  meaning  of  the  bankruptcy  act.  July  1,  1898,  c-541,  par.  64b.  "Lexi- 
cographers define  these  words  differently  but  courts  have  not  considered 
themselves  bound  by  the  definitions  found  in  dictionaries  and  have  con- 
strued these  words  so  as  to  carry  into  effect  the  intention  of  the  law- 
makers, and  with  this  thought  in  mind  it  is  my  opinion  that  the  members 
of  the  orchestra  would  usually  be  employes  within  the  meaning  of  the 
compensation  act.  The  contract  of  employment  may,  however,  be  such 
as  to  change  the  relationship  of  the  parties  so  that  they  would  be  inde- 
pendent contractors  or  perhaps  employes  of  the  director  of  the  orchestra." 

A  Comparison 

The  table  below  will  show  a  comparison  as  to  the  waiting  period 
of  the  several  compensation  laws,  the  death  benefit  and  the  method  of 
administration.  Twenty-two  states  have  fourteen  days  as  the  waiting 
period,  while  six  states  have  seven  days,  one  state  twenty-one  days,  one 
state  fifteen  days,  one  state  six  days,  two  states  ten  days,  and  two  states 
no  waiting  period  at  all.  The  death  benefit  varies  from  $6,100  in  Pennsyl- 
vania to  $2,000  in  Wyoming.  The  average  death  benefit  for  the  twenty- 
eight  states  which  have  fixed  benefits  is  $3,921.27.  The  Louisiana  law 
provides  a  death  benefit  of  50  per  cent  of  the  wages  received  by  the  em- 
ploye at  the  time  of  the  injury  resulting  in  death  during  the  life  of  the 
wife.  Under  the  provisions  of  the  Wisconsin  law  the  widow  is  paid  an 
amount  equal  to  six  years'  earnings  of  the  deceased  employe.  Injuries 
resulting  in  death  are  not  included  in  the  Oklahoma  law.  Under  the  fed- 
eral law  the  widow  receives  an  amount  equal  to  one  year's  earnings  of 
deceased  employe.  Under  the  Oregon  law  the  widow  is  paid  $50  per  month 
during  her  life,  and  under  the  West  Virginia  and  Washington  laws  the 
widow  receives  $35  per  month  during  her  life.  In  eleven  of  the  states 


24 


STATE  DEPARTMENT  OF  LABOR 


the  courts  administer  the  law.  In  the  federal  law  the  secretary  of  labor 
is  the  administrator  and  in  twenty-two  states  the  compensation  law  is 
administered  by  commissioners. 


States,  Etc. 

Waiting 
Period 

Death 
'       Benefit 

i         Disputes 
1       Settled  By 

Alaska 

14  days 

$6,000.00 

Courts 

Colorado 

21  days 

2,500  00 

Commission 

Connecticut 

10  days 

3,220.00 

Commission 

Illinois 

6  days 

3,500.00 

Courts 

Indiana                       .         

14  days 

3,700.00 

Courts 

Iowa 

14  days 

3,100.00 

Commission 

Kansas  

14  days 

3,600.00 

Courts 

Louisiana 

14  days 

50%  of  wages' 

Maine 

14  days 

during  life  of 
wife. 
3,000.00 

Courts 
Commission 

Michigan  

14  days 

3,000.00 

Commission 

Minnesota  

14  days 

3,400.00 

Courts 

Montana 

14  days 

4,075.00 

Commission 

Nebraska  

14  days 

3,600.00 

Courts 

New  Hampshire 

14  days 

3,000.00 

Courts 

New  Jersey  

14  days 

3,100.00 

Courts 

Pennsylvania          

14  days 

6,100.00 

Commission 

Rhode  Island 

14  days 

3,000.00 

Courts 

Vermont  

14  days 

3,500.00 

Commission 

Wisconsin                            .    .  . 

7  days 

6  years' 

Arizona     .         .  .. 

14  days 

earnings. 
4,000.00 

Commission 
Courts 

California 

14  days 

5,000.00 

Commission 

Canal  Zone  

7  days 

5,000.00 

Governor 

Hawaii 

14  days 

5,000.00 

Commission 

Maryland 

14  days 

4,250.00 

Commission 

New  York            

14  days 

3,000.00 

Commission 

Oklahoma 

14  days 

Not 

Federal  

15  days 

included. 
1  years' 

Commission 

Massachusetts  

14  days 

earnings. 
5,000.00 

Sec.  of  Labor 
Commission 

Nevada                   ...    . 

7  days 

6,000.00 

Commission 

Oregon 

None 

Max   $50  per 

Texas          

7  days 

mo.  during 
life  of  wife. 
5  400  00 

Commission 
Commission 

West  Virginia 

7  days 

Max   $35  per 

Ohio 

7  days 

mo.  during 
life  of  wife. 
3  750  00 

Commission 
Commission 

^Washington 

None 

Max   $35  per 

Wyoming 

1  0  days 

mo.  during 
life  of  wife.     : 
2  000  00 

Commission 
Courts 

Classification  of  Accidents 

The  classification  of  accident  causes  are  credited  to  the  "negligence 
of  employer,"  "negligence  of  employe,"  "comparative  negligence,"  "fellow 
servant,"  "fault  not  placed,"  or  "incident  to  employment." 

In  the  very  nature  of  things  any  method  of  classification  of  accident 
causes  cannot  be  entirely  reliable.  Every  accident  necessarily  includes 


WORKMEN'S  COMPENSATION  LAW  25 

more  than  one  of  these  distinctions.  With  ordinary  care,  working  in  a 
perfectly  safe  place,  with  perfect  tools,  accidents  infrequently  happen. 
But  ordinary  care  is  a  variable  quality  and  is  hard  to  design;  no  place 
is  securely  safe  and  no  tools  are  perfect.  Strictly  speaking  there  is  no 
such  thing  as  an  unavoidable  accident,  save  and  except  those  occurring 
from  causes  outside  of  human  activity.  Lightning,  flood  and  earthquake 
may  cause  accidents,  and  do,  but  they  cannot  be  foreseen  or  guarded 
against,  and  are  in  the  category  of  purely  fortuitous  events.  The  human 
mind  can  no  more  escape  the  invasion  of  vagrant  thoughts  than  it  can 
focalize  on  a  special  point  in  observing  the  sunrise.  It  is  not,  neither  can 
it  jbe  fixed  to  a  certain  point  in  any  individual,  for  a  determinate  period 
of  time.  A  new  thought  comes  into  consciousness  with  every  new  align- 
ment of  body  and  brain,  and  this  new  alignment  takes  place  every  time 
one  moves.  Not  many  accidents  are  caused  by  "want  of  thought,"  but 
are  frequently  caused  by  too  much  thought.  In  a  very  large  number  of 
cases  accidents  "just  happen."  Owing  to  the  bad  reputation  of  the  ram, 
more  than  ordinary  care  is  supposed  to  be  exercised  when  at  or  near  the 
"butting"  end  of  that  ram.  But  all  rams  do  not  attack.  Familiarity 
with  this  animal  breeds  carelessness.  But  it  would  be  hard  to  say  whether 
a  man  who  come  in  contact  with  the  business  end  of  a  ram  was  guilty 
of  negligence  or  that  it  was  a  case  of  base  betrayal  of  confidence. 

Accidents  are  classified  according  to  a  reasonable  interpretation  of 
the  information  given  on  the  face  of  reports.  A  thorough  investigation 
by  properly  authorized  tribunals  or  individuals  might  ascertain  the  facts 
to  be  different  from  that  indicated  on  the  face  of  the  reports.  But  there 
are  a  large  number  of  accidents  which  "just  happen" — it  being  impossible 
to  fix  the  blame  or  ascertain  the  cause.  These  are  classified  as  "incident 
to  employment." 

One  result  of  the  operation  of  the  Nebraska  compensation  law  has 
been  most  gratifying.  With  hardly  a  single  exception  injured  employes 
have  returned  to  their  job  as  soon  as  repaired,  that  is,  as  soon  as  they 
recovered  from  the  injury  sustained.  Under  the  common  law  or  em- 
ployers' liability  method  of  dealing  with  work  accidents,  when  the  ambu- 
lance chaser's  activities  were  unchecked,  such  was  not  the  case.  The 
court  records  of  the  state  will  show  that  about  50  per  cent  of  those  who 
suffered  work  accidents  were  induced  to  start  a  damage  suit  and  that 
about  10  per  cent  of  those  who  sought  damages  finally  secured  an  award 
of  damages  after  long  drawn  out  litigation.  Practically  100  per  cent  of 
those  who  sought  to  recover  damages  for  a  personal  injury  never  returned 
to  the  job  upon  which  they  suffered  their  injury.  Even  though  the  scale 
of  compensation  may  be  smaller  in  the  exceptional  cases  than  could  be 
recovered  by  litigation,  the  certainty  of  the  payment  of  a  fixed  amount 
without  trouble  or  worry  is  surely  a  gratifying  circumstance  when  the 
employe  knows  and  feels  that  he  is  not  to  lose  his  employment  by  reason 
of  the  meddling  of  those  who  seek  to  profit  by  his  misfortune.  Many  a 
man  may  go  to  his  daily  toil  with  a  lighter  heart  due  to  the  knowledge 
that  if  anything  happens  to  him  before  the  day  is  done,  that  at  least 
his  loved  ones  will  not  be  objects  of  charity.  Many  a  sorrowing  mother's 


26  STATE  DEPARTMENT  OF  LABOR 

bleeding  heart,  as  she  tries  to  comfort  her  fatherless  children  on  the 
return  from  the  cemetery,  may  be  solaced  by  the  thought  that  at  least 
there  is  no  fear  of  their  going  hungry.  Statistics  gathered  by  the  fed- 
eral government  and  the  several  states  show  that  only  about  10  per  cent 
of  the  employes  who  suffer  work  accidents  have  been  able  to  recover  dam- 
ages under  the  common  law  and  employers'  liability  statutes.  In  other 
words,  if  an  employe  should  suffer  an  injury  he  had  only  one  chance 
in  ten  of  recovering  an  award  at  the  end  of  litigation.  Under  compen- 
sation laws  the  injured  employe  has  100  per  cent  of  the  chances  to  recover. 
True,  th'e  amount  of  recovery  in  exceptional  cases  is  larger,  but  the  em- 
ployer under  the  compensation  law  is  given  a  certainty  of  recovery  for 
an  uncertainty,  together  with  loss  of  employment  and  court  costs  and 
attorney  fees  and  the  almost  limitless  waiting  period. 

Totals  for  the  Year 

The  following  table  gives  the  totals  and  averages  for  the  year  as 
compiled  from  completed  reports  which  have  been  filed  in  the  department 
of  labor  for  the  first  year  of  the  operation  of  the  compensation  law.  There 
are  many  cases  in  which  settlements  are  pending,  owing  to  the  lack  of 
any  fixed  method  of  settlement  aside  from  the  agreement  of  the  parties. 
A  report  should  be  filed  in  the  state  department  of  labor  covering  all 
accidents  suffered  by  an  employe  who  is  under  the  compensation  law, 
regardless  of  the  minor  or  serious  nature  of  the  accident.  Blanks  for 
reporting  these  accidents  are  furnished  by  the  department  of  labor  upon 
application.  Also  blanks  are  furnished  to  be  used  in  making  the  different 
elections  provided  in  the  law.  These  elections  must  be  filed  in  the  office 
of  the  commissioner  of  insurance. 

Total  number  reports  filed 4,082 

Total  number  complete  reports  filed 2,222 

Total  number  non-compensation  cases 1,617 

Total  number    compensation    cases 605 

Total  paid  in  compensation  $24,923.62 

Total  paid  for  medical  attention  24,004.83 

Total  paid  for  hospital    services 772.91 

Total  paid  for  ambulance  charges  13.90 

Total  paid  for  nurse  hire 34.05 

Total  paid  for  medical  attention  in  non-compensation  cases 9,656.16 

Total  paid  for  hospital   services   in   non-compensation    cases 287.15 

Total  paid  for  medical  attention  in  compensation  cases 14,996.42 

Total  paid  for  hospital  services  in  compensation  cases 423.71 

Total  paid  for  ambulance  charges  in  compensation  cases 25.40 

Total  paid  for  nurse  hire  in  compensation  cases 34.05 

Average  paid  for  accidents  resulting  in  death 1,041.46 

Average  medical  attention  cost  in  fatal  cases 5.33 

Average  hospital  charges  in  fatal  cases 15.83 

Average  cost  of  medical  attention  in  non-compensation  cases 5.97 


WORKMEN'S  COMPENSATION  LAW  27 

Average  cost  of  hospital  charges  in  non-compensation  cases .17 

Total  number  of  days  lost  by  employe  in  compensation  cases 11,754 

Average  number  of  days  lost  by  employe  in  compensation  cases  19.4 

Total  number  days  lost  by  employe  in   non-compensation   cases  5,060 
Average  number  of  days  lost  by   employe  in  non-compensation 

cases   3.1 

Total  number  cases  "Fault   Not   Placed" 468- 

Total  number  cases  "Incident  to   Employment" 1,454 

Total  number  cases  "Negligence  Employe"  11& 

Total  number  cases  "Negligence    Employer" 78 

Total  number  cases  "Fellow  Servant"  91 

Total  number  cases  "Comparative    Cases" '. IS 


WORKMEN'S  COMPENSATION  LAW 


29 


Non-Compensation  Cases 


Negligence  of  Employer 

The  reports  of  completed  cases  filed  in  the  State  Department  of  Labor 
show  that  there  were  sixty-one  cases  reported  in  which  the  injury  suffered 
by  the  employe  was  through  the  negligence  of  the  employer.  In  the  sixty- 
one  cases  included  in  the  table  below,  the  total  amount  paid  for  medical 
attention  was  $345.60.  There  was  no  compensation  paid  in  any  one  of  the 
sixty-one  cases,  for  the  reason  that  none  of  these  injuries  caused  the  em- 
ploye to  lose  more  than  fourteen  days;  that  is,  the  injury  did  not  disable 
the  employe  for  more  than  fourteen  calendar  days  in  any  one  instance. 
If  the  fault  is  properly  placed  in  the  sixty-one  cases  covered  in  this  table, 
the  total  number  could  have  recovered  under  the  common  law  for  their 
injuries. 


No.    Days 
Lost  Time 

No. 

Cases 

Medical 
Atten- 
tion 

Hospital 
Services 

i 

Ambu-  ' 
lance 

Nurse 
Hire 

.  Average 
Benefit 
to 
Employe 

0 

32 

$113.25 

$3  54 

1 

1 

2.00 

2  00 

2 

3 

22.70 

7  56 

3 

4 

31.00 

7  75 

4 

2 

8.00 

4  00 

5 

2 

8.00 

4  00 

6 

2 

20.00 

10  00 

7 

1 

4.00 

4.00 

8 

2 

12.00 

6  00 

9 

1 

2.00 

2.00 

11 

3 

35  50 

11  83 

12 

1 

3.50 

3  50 

13 

2 

14  15 

7  07 

Not  stated. 

3 

56.50 

18.83 

Less    than    14 

2 

13.00 

6.50 

Total 

61 

$345.60 

Negligence  of  Employe 

The  table  below  shows  that  eighty  cases  were  reported  to  the  Depart- 
ment of  Labor,  in  which  the  fault,  as  indicated  by  the  reports,  was  the 
negligence  of  the  employe.  In  the  eighty  cases  $609.30  was  paid  for  med- 
ical attention,  and  $21  for  hospital  services.  It  will  be  noted  that  there 
are  five  cases  included  in  the  table  below  in  which  the  disability  lasted 
more  than  fourteen  calendar  days,  and  the  injured  employe  should  have 
been  compensated,  in  these  five  cases,  for  all  of  the  lost  time  in  excess  of 


30 


STATE  DEPARTMENT  OF  LABOR 


the  fourteen  calendar  days.     There  was  no  compensation  paid  in  any  one- 
of  the  eighty  cases  included  in  the  table. 


No.    Days 
Lost  Time 

No. 

Cases 

Medical 
Atten- 
i      tion 

Hospital 
Services 

Ambu- 
lance 

i 

Nurse 
Hire 

I 

Average 
Benefit 
to 
Employe 

0 

37 

$260.50 

$7  04 

1 

2 

6.00 

3  00 

2 

2 

15.00 

. 

. 

7  50 

3 

2 

10.00 

5  00 

4 

2 

8.50 

4  25 

5 

5 

29.00 

5  80 

6 

6 

2.00 

33 

7 

3 

22  00 

7  33 

8 

4 

16.00 

$    1.00 

4  25 

9 

2 

19.00 

10.00 

14  50 

10 

1 

8.00 

8.00 

11 

2 

16.80 

8.40 

12 

1 

8.00 

8.00 

13 

1 

21.00 

10.00 

31.00 

15 

1 

10  00 

10  00 

16 

1 

5.00 

5.00 

20 

1 

17  50 

17.00 

22 

1 

24 

1 

Not     given.    .    .. 

3 

110.00 

36.66 

Less    than    14 

2 

25  00 

12.50 

Total.... 

80 

$609.30 

$21.00 

Fellow  Servant 

There  were  fifty-nine  cases  reported  to  the  Department  of  Labor  in 
which  no  compensation  was  paid  by  reason  of  the  fourteen  calendar  day 
limitation,  in  which  the  fault  or  cause  of  the  injury  suffered  by  the  em- 
ploye was  indicated,  by  the  reports,  to  have  been  the  act  of  a  fellow 
servant.  The  total  cost  of  medical  attention  for  the  fifty-nine  cases  was 
$379.65.  It  will  be  noted  that  twenty-three  of  the  fifty-nine  cases  included 
in  the  table  below,  or  over  45  per  cent,  show  no  lost  time. 


No.    Days 
Lost  Time 

No. 

i  Cases 

Medical 
1  Atten- 
tion 

Hospital 
Services 

Ambu-  ! 
lance 

Nurse    | 
Hire 

!                  ; 

Average 
Benefit 
to 
Employe 

0 

23 

$84.50 

i 

$3  67 

1 

2 

4.00 

2.00 

2 

4 

13.00 

325 

4 

4 

44.00 

11.00 

5 

2 

5.50 

2  25 

6 

1 

9.00 

9.00 

7 

5 

64.25 

12.85 

8 

2 

12.40 

6.20 

9 

2 

46.00 

23.00 

10 

7 

7  00 

7.00 

11 

2 

17.00 

8.50 

14 

2 

17.00 

8.50 

Not  given  

2 

46.00 

23.00 

Less    than    14 

1 

10.00 

10.00 

Total.... 

59 

$379.65 

WORKMEN'S  COMPENSATION  LAW 


31 


Comparative  Negligence 

The  table  below  shows  thirteen  cases  in  which  there  was  no  compen- 
sation paid  to  the  injured  employe,  and  in  which  on  the  face  of  the  reports 
filed,  the  fault  was  practically  evenly  divided  between  employer  and  em- 
ploye. In  the  thirteen  cases  covered,  $59  for  medical  attention  and  $5.80 
for  hospital  services  were  paid.  It  will  be  noted  that  there  were  two 
cases  in  which  the  disability  lasted  one  day  each  more  than  the  fourteen 
calendar  days,  and  that  each  injured  employe  should  have  been  compensated 
50  per  cent  of  the  lost  earning  power  for  the  one  day. 


No.    Days 
Lost  Time 

No.    ] 
Cases 

Medical 
Atten- 
tion 

Hospital 
Services 

Ambu-  ! 
lance 

i    Nurse 
Hire 

Average 
Benefit 
to 
Employe 

0 

6      1 

$9.00 

$1  50 

2 

1 

2.00 

2  00 

4 

1 

10.00 

10  00 

5 

1 

5.00 

5  00 

8 

1 

8.00 

8.00 

11 

1 

5.00 

5  00 

15 

2 

20.00 

5.80 

12.90 

Total  

13 

$59.00 

$5.80 

Fault  Not  Placed 

There  were  313  reports  filed  of  completed  cases  in  which  there  was 
no  compensation  paid  the  injured  employe  by  reason  of  the  disability  not 
continuing  more  than  fourteen  calendar  days.  In  tabulating  these  cases 
under  the  heading  "Fault  Not  Placed"  the  department  adhered  to  the  rule 
that  in  all  cases  where  the  face  of  the  report  did  not  show  the  cause  of 
the  injury  that  it  was  impossible  to  place  the  blame  or  the  cause  of  the 
injury,  and  could  only  be  listed  in  the  very  indefinite  column  of  "fault 
not  placed."  The  313  cases  in  this  table  called  for  the  payment  of  $2,367.81 
for  medical  attention  and  $72.85  for  hospital  services.  In  the  column  giv- 
ing the  number  of  days  of  disability  it  will  be  noted  that  there  were 
twelve  cases  in  which  the  disability  lasted  more  than  fourteen  calendar 
days.  In  each  case  in  which  the  disability  lasted  more  than  fourteen 
calendar  days  the  injured  employe  should  have  been  compensated  for  each 
working  day  in  excess  of  the  fourteen  calendar  days.  The  figures  in  this 
table  show  that  twelve  injured  employes  who  were  entitled  to  the  compensa- 
tion for  which  the  employer  had  paid  failed  to  receive  such  compensation. 


32 


STATE  DEPARTMENT  OF  LABOR 


Some  board  or  individual  clothed  with  power  to  apply  and  alminister  the 
law  is  needed  if  the  condition  here  set  forth  is  not  to  continue. 


No.    Days 
Lost  Time 

No. 

Cases 

Medical 

i  Atten-    ; 
1      tion 

Hospital 

Services 

i 

Ambu-  ! 
lance 

Nurse 
Hire 

I 

Average 
Benefit 
to 
Employe 

0 

148 

$812.20 

$7.00 

$5.53 

1 

8 

28.00 

3  50 

2 

17 

94  50 

5  55 

3 

12 

54.45 

4.53 

4 

8 

27  00 

3  37 

5 

14 

67.00 

4.78 

6 

8 

61  50 

7  68 

7 

11 

105.00 

9.54 

8 

19 

134  00 

7  05 

9 

6 

53.65 

8.94 

10 

8 

41.00 

5.12 

11 

6 

61.75 

10.29 

12 

10 

100.00 

10.00 

13 

1 

9  00 

9  00 

14 

4 

64.00 

16.00 

15 

4 

70.00 

17.50 

16 

3 

28.00 

1.35 

9  78 

17 

1 

19.00 

19.00 

18 

2 

16.00 

8.00 

20 

1 

5.00 

5.00 

24 

1 

5.00 

5.00 

Not   given  

16 

1       492.76 

64.50 

34.83 

Less    than    14 

5 

1         19.00 

3.80 

TotaL- 

313 

$2,367.81 

$72.85 

Incident  to  Employment 

Reports  were  filed  showing  the  settlement  of  1,091  cases  in  which 
the  fault  was  not  placed,  and  so  far  as  the  information  given  in  the  re- 
port, would  indicate  that  the  injury  was  incident  to  employment;  that  is, 
that  each  injury  was  simply  one  of  those  injuries  which  must  happen 
in  the  every  day  activities  of  life.  There  was  no  compensation  paid  in 
any  one  of  the  1,091  cases  included  in  the  table  below.  It  will  be  noted 
that  there  were  thirty-one  cases  in  which  the  period  of  disability  exceeded 
fourteen  calendar  days,  and  for  which  compensation  should  have  been  paid 
to  the  injured  employe.  If  there  was  some  method  of  administration  of 
the  Nebraska  Compensation  Law,  these  thirty-one  injured  employes  would 
have  had  a  chance,  at  least,  of  receiving  the  compensation  to  which  they 


WORKMEN'S  COMPENSATION  LAW 


33 


were  entitled,  and  in  most  cases,  paid  for  in  insurance  premiums  by  their 
employers.  There  was  paid  for  medical  attention  $5,894.80,  and  $187.50 
for  hospital  services. 


No.    Days 
Lost  Time 

No. 

Cases 

Medical 

Atten-    , 
tion 

Hospital 
Services 

i  Ambu-  ' 
1    lance 

1 

Nurse 
Hire 

Average 
Benefit 
to 
Employe 

0 

513 

$2,285.45 

$63.50 

$4  58 

1 

78 

266.95 

3  42 

2 

42 

174.60 

..   .      3.00 

4  22 

3 

64 

271.10 

13.50 

4  44 

4 

57 

257.50 

4  53 

5 

40 

236.14 

5  90 

6 

40 

243.20 

6  08 

7 

32 

240.85 

7  52 

8 

29 

197.85 

7.50 

7  08 

9 

25 

176.10 

3.00 

6  76 

10 

27 

200.40 

6.00 

7  64 

11 

18 

112.50 

6  25 

12 

11 

99.75 

9  07 

13 

16 

161.00 

16.00 

11  06 

14 

16 

188.60 

11  78 

15 

14 

151.60 

18.00 

12  11 

16 

9 

66.00 

7  33 

18 

3 

122.00 

16.00 

46  00 

19 

1 

6.66 

23.00 

29.66 

20 

2 

22.00 

11  00 

21 

1 

5.00 

13.00 

18.00 

37 

1 

11.00 

11  00 

Not     given  

24 

212.50 

8.85 

Less    than    14 

28 

186.05 

5.00 

6.82 

Total.... 

1.091 

$5.894.80 

$187.50 

Elections 

The  provisions  of  the  compensation  law  apply  to  the  state  of  Nebraska 
and  every  governmental  agency  created  by  it,  and  every  employer  in  the 
state  employing  five  or  more  employes,  in  the  regular  trade,  business, 
profession  or  vocation  of  such  employer.  Household  servants  and  farm 
laborers  are  declared  not  to  be  engaged  in  hazardous  occupations  and  are 
not  under  the  provisions  of  the  law.  Railroad  employes  engaged  in  inter- 
state or  foreign  commerce  are  declared  to  be  under  the  powers  of  congress. 
Every  employer  and  employe  as  enumerated  above  are  presumed  to  be 
under  the  law  unless  the  employer  or  employe  file  an  election  to  the  con- 
trary with  the  commissioner  of  insurance. 

Employers  and  employes  not  included  in  the  above  may  file  a  joint 
election  with  the  insurance  commissioner  and  accept  the  provisions  of  the 
compensation  law. 

The  following  rejections  (46),  withdrawals  of  rejections  (9)  and  joint 
elections  (87)  have  been  filed  in  the  office  of  the  commissioner  of  insurance: 


34 


STATE  DEPARTMENT  OF  LABOR 


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WORKMEN'S  COMPENSATION  LAW  39 


Compensation  Awards 

Under  the  provisions  of  the  Nebraska  statutes  as  they  existed  be- 
fore the  adoption  of  the  compensation  law,  and  the  defenses  under  the 
common  law,  employes  injured  in  the  course  of  employment  could  only 
recover  an  award  of  damages  for  the  injury  where  the  fault  or  negli- 
gence was  that  of  the  employer. 

The  briefest  statement  of  the  common  law  rule  governing  the  em- 
ployer is  that  he  is  required  to  use  due  care  for  the  safety  of  his  em- 
ployes while  they  are  engaged  in  the  performance  of  their  work.  This  is 
taken  to  include  all  reasonable  means  and  precautions,  the  facts  in  each 
particular  case  being  taken  into  consideration.  If  such  provisions  have 
been  made  as  a  reasonably  prudent  man  would  supply  if  he  himself  were 
exposed  to  the  dangers  of  the  servant's  position,  no  negligence  would 
appear.  In  the  case  of  corporations  supreme  courts  fix  the  duty  at  the  use 
of  such  caution  and  foresight  as  a  corporation  controlled  by  careful,  prudent 
officers  ought  to  exercise.  Though  the  courts  have  not  sanctioned  the 
rule  that  would  tend  to  charge  the  employer  with  a  higher  degree  of 
care  than  that  which  may  be  defined  as  ordinary,  the  measure  is  not  an 
absolute  one,  but  is  proportioned  to  the  dangers  to  which  the  employe 
is  exposed.  The  ordinary  incidents  of  railroading,  mining  and  certain 
classes  of  manufacturing  are  in  themselves,  in  comparison  with  general 
employments,  unusually  dangerous;  and  so  of  a  large  railroad  as  com- 
pared with  a  smaller  one,  an  express  train  as  compared  with  a  freight 
train,  or  a  gaseous  mine  with  one  in  which  no  such  dangers  exist.  In 
such  cases  as  these,  or  when  temporarily  abnormal  conditions  prevail, 
ordinary  care  is  advanced  far  beyond  the  requirements  of  the  less  danger- 
ous conditions.  On  the  other  hand,  care  may  lawfully  be  relaxed  if  the 
risk  is  unusually  slight  or  if  a  device  is  for  a  specific  and  transitory 
use.  Practically  the  rule  of  the  common  law  can  be  stated  as  being  that 
an  employer  can  not  be  required  to  respond  in  damages  unless  fault  can 
be  traced  to  him,  or  that  he  was  negligent  and  failed  to  exercise  ordinary 
care. 

The  Nebraska  compensation  law  substitutes  for  the  common  law 
rule  and  statutory  provisions  the  rule  that  the  employer  must  respond 
in  damages  regardless  /)f  fault,  unless  it  be  shown  that  the  employe  wil- 
fully produced  the  injury.  This  substitution  is  based  on  the  theory  that 
occupational  injuries  should  be  a  charge  against  the  business  operated 
by  the  employer. 

Applying  the  rule  of  the  common  law,  only  those  accidents  which 
are  the  result  of  the  fault  or  negligence  of  the  employer  can  the  em- 
ployer be  required  to  respond  in  damages.  Reports  filed  under  the  com- 
pensation law  show  that  out  of  the  total  number  of  cases  reported  compen- 
sation was  paid  in  a  total  of  605.  Only  seventeen  of  these  reports  show 
that  the  employer  had  been  negligent.  Under  a  normal  application  of  the 
common  law  rule  only  29  per  cent  of  the  605  employes  who  suffered  an 
injury  and  received  compensation  could  have  recovered.  Thus  the  differ- 


40 


STATE  DEPARTMENT  OF  LABOR 


ence  between  100  per  cent  and  29  per  cent,  or  71  per  cent,  received  an 
award  by  reason  of  the  provisions  of  the  compensation  law. 

In  the  reports  of  605  completed  cases  in  which  compensation  was 
paid  are  included  17  cases  in  which  the  fault  on  the  face  of  -the  reports 
was  clearly  placed  on  the  employer,  while  there  were  155  cases  which  the 
reports  failed  to  indicate  from  the  statements  of  the  cause  of  the  injury 
sufficint  information  to  place  the  fault,  so  these  155  cases  have  been 
listed  under  "fault  not  placed."  Thirty-eight  accidents  for  which  com- 
pensation was  paid  were  plainly  the  fault  of  the  injured  employe;  thirty- 
two  the  fault  of  a  fellow  servant,  and  363  which  from  the  face  of  the 
reports  seemed  to  be  those  sort  of  accidents  which  simply  happen — unex- 
plainable  and  the  fault  of  neither  employe,  employer  or  a  fellow  servant. 

Summing  up  the  information  contained  in  the  tables  following,  which 
cover  a  total  of  605  completed  cases  reported,  71  per  cent  of  the  total 
number  received  money  settlements  for  injuries  simply  by  reason  of  the 
provisions  of  the  compensation  law,  whereas  if  the  rules  of  the  common 
law  had  prevailed  only  29  per  cent  of  the  total  number  could  have  re- 
covered a  money  settlement. 

Compensation  Cases 

The  following  tables  show  the  number  of  completed  reports  of  cases 
which  have  been  reported  to  the  state  department  of  labor  in  which  com- 
pensation has  been  paid.  These  cases  are  classified  as  to  fault  from  the 
information  contained  in  the  report  of  the  accident.  There  is  a  total 
of  605  cases  covered  in  these  tables.  The  total  number  of  days  lost 
time  is  20,705,  with  a  total  of  36  cases  in  which  the  lost  time  was  not 
stated.  The  total  paid  to  injured  employes  in  the  605  cases  was  $40,403.20, 
making  an  average  payment  of  $66.78  for  the  total  number  of  cases. 
The  average  payment  for  each  day  of  lost  time,  not  including  the  36 
cases  in  which  the  lost  time  was  not  stated,  would  be  $1.95+  per  day. 
The  average  paid  for  medical  attention  is  $24.78.  The  average  paid  in 
compensation,  exclusive  of  medical  attention,  hospital  services,  ambulance 
charges  and  nurse  hire,  is  $43.59. 

Negligence   of   Employer 


No. 

Days 

No. 

Cases 

Compen- 
sation 

Medical 
Atten- 
tion 

Hospital 
Services 

Ambu- 
lance 

Nurse 
Hire 

Average 
Benefit 
to 
Employe 

21 

2 

$14.56 

$24.00 

$19  28 

28.    . 

2 

22.70 

32.00 

27.35 

29 

3 

34.50 

23.00 

19  18 

32.    ., 

1 

13.00 

8.00 

21.00 

39 

1 

16.67 

39.25 

55  92 

47.     .. 

1 

28.00 

25.00 

53.00 

60 

1 

120.00 

27.00 

147  00 

67 

1 

82  50 

39.00 

121  50 

93 

1 

80.00 

27.00 

107  00 

105 

1 

62.50 

27.50 

90  00 

115 

1 

115.50 

97.50 

213.00 

131 

1 

139.00 

84.50 

1       223  50 

225      .. 

1 

442.00 

143.00 

i 

585.00 



Totals 

1     17      1 

$1,170.93 

1     $596.75 





i 

WORKMEN'S  COMPENSATION  LAW 


41 


Fault  Not  Placed 


No. 
Days 

No. 
Cases 

1 
Compen- 
sation 

Medical 
Atten- 
tion 

Hospital 
Services 

Ambu- 
lance 

Nurse 
Hire 

Average 
Benefit 
to 
Employe 

1  

1 

$   1.33 

$    2.50 

$   3  83 

2 

2 

5.45 

1.00 

3  22 

3  

2 

46.80 

18.50 

32  65 

4 

3 

12.00 

20.50 

10  83 

5  

1 

194.00 

3.00 

197  00 

6  

3 

57.20 

49.13 

35  44 

7  

2 

28.50 

26.50 

27  50 

g 

2 

23.50 

15.00 

19.25 

9  

1 

9.64 

4.00 

13  64 

10  

1 

25.40 

5.00 

30.40 

14. 

1 

27.50 

26.30 

53  80 

15  

1 

36.00 

51.00 

87.00 

16.    .. 

2 

33.38 

14.00 

28  69 

17  

4 

5.07 

56.00 

15.26 

18.  ... 

4 

12.33 

28.25 

10  14 

19  

3 

15.60 

8.75 

$   1.50 

8  61 

20  

1 

5.70 

14.50 

20.20 

21  

2 

9.30 

35.90 

22  60 

22  

7 

66.63 

184.47 

4.00 

36.44 

23..   . 

2 

11.62 

13.00 

12  31 

24  

5 

53.75 

24.00 

15.55 

25 

3 

59.56 

25  50 

28  35 

26 

4 

o  o   on 

44  50 

20  69 

27  

4 

137.50 

98.25 

58.93 

28      .. 

4 

70.40 

199.00 

67.35 

29  

1 

10.00 

10.00 

30      .. 

3 

37.30 

24.00 

20.43 

31  

5 

81.07 

72.00 

1.50 

30.91 

32 

1 

15.50 

15.50 

34  

3 

110.60 

96.15 

68.91 

35 

3 

56.25 

38.00 

31.41 

36  

1 

18.00 

8.00 

26.00 

37 

4 

103.78 

83  50 

46.82 

38  

3 

55.80 

103.75 

53.69 

40.      . 

2 

49.80 

148  00 

98.90 

41  

1 

20.00 

30.00 

50.00 

42 

1 

40  00 

5.00 

45.00 

43  

2 

44.16 

35.65 

39.90 

45 

4 

77.16 

60.25 

34.37 

49.    .. 

2 

67.00 

125.50 

96.25 

50 

1 

29.20 

25.00 

54.20 

53  

1 

32.00 

10.00 

42.00 

56 

4 

223  29 

131.50 

7  00 

90.44 

57  

3 

184.00 

38.00 

222.00 

58.... 

2 

107.62 

121.00 

114.31 

42 


STATE  DEPARTMENT  OF  LABOR 


Fault  Not  Placed — (Continued) 


No. 
Days 

No. 
Cases 

Compen- 
sation 

Medical 
Atten- 
tion 

Hospital 
Services 

Ambu- 
lance 

Nurse 
Hire 

Average 

Benefit 
to 
Employe 

59.    . 

2      ' 

$98.13 

$17.00 

$57.56 

61 

1      \ 

88.30 

32.50 

120  80 

62 

2 

132  86 

86  15 

109  50 

64 

2 

90.31 

84.25 

87  28 

65 

1 

50  00 

4  50 

54  50 

70 

1 

80.00 

35.50 

115  50 

84 

1 

69  96 

65  00 

$28  00 

162  96 

87 

2 

169.87 

200.00 

184  93 

90  

1 

65.63 

30.00 

95.63 

92 

1 

65.00 

27.00 

92  00 

96  

1 

66.77 

35.00 

1.50 

103.27 

101 

1 

52.50 

10.00 

62  50 

108  

1 

93.75 

25.00 

118.75 

141 

1 

196.00 

5.00 

201  00 

148  

1 

201.20 

155.00 

30.70 

386.90 

152 

1 

65.00 

85.68 

150  68 

161  

1 

172.50 

73.00 

35.00 

280.50 

243 

1 

191.00 

156.50 

347  50 

263  

1 

355.01 

26.50 

381.51 

Not 
given.. 

19 

3,896.92 

474.60 

5.00 

230.34 

Totals  1 

155 

$8,549.69 

$3,752.03 

$115.70 

WORKMEN'S  COMPENSATION  LAW 


43 


Xegligence  of  Employe 


No. 
Days 

No. 
Cases 

Compen- 
sation 

Medical 
Atten- 
tion 

Hospital 
Services 

Ambu- 
lance 

Nurse 
Hire 

Average 
Benefit 
to 
Employe 

3  

1 

$   6.00 

$   6.00 

$12.00 

4..   .. 

2 

8.18 

4.09 

6  

1 

15.20 

2.00 

17.20 

7.     .. 

1 

7.74 

8.00 

15.74 

11  

1 

9.40 

5.00 

14.40 

13. 

1 

12.20 

12.20 

15  

1 

38.40 

15.70 

54.10 

17 

2 

37.50 

36  00 

$11  70 

42  60 

18  

1 

4.00 

8.00 

12.00 

19 

3 

58.41 

57  00 

38  47 

22  

2 

29.92 

35.50 

32.71 

23 

1 

9  00 

25  50 

34  50 

25.... 

2 

13.35 

6.67 

26 

1 

9  13 

17  00 

26  13 

28  

1 

10.00 

10.00 

29  

1 

8.00 

19.00 

27.00 

33..   . 

2 

37.31 

20.00 

28.65 

36  

1 

114.13 

41.00 

155.13 

37.      . 

1 

15.84 

2.00 

17.84 

53  

1 

16.00 

7.50 

23.50 

57  

1 

50.00 

117.00 

167.00 

66 

1 

50  00 

25  00 

75  00 

74.  .  .. 

1 

53.33 

53.00 

106.33 

92  
94  

1 
1 

78.00 
81.07 

191.00 



$   7.00 



276.00 
81.07 

99 

1 

83  00 

31  00 

114  00 

111  

1 

84.00 

198.00 

2.00 

284.00 

Not 
given- 

4 

1,149.50 

173.15 

31.16 

2.50 

338.99 

Totals 

38 

$2.088.61 

$1.093.35 

$44.86 

$   9.50 

44 


STATE  DEPARTMENT  OF  LABOR 


Fellow  Servant 


No. 
Days 

No. 
Cases 

Compen- 
sation 

Medical 
Atten- 
tion 

Hospital 
Services 

Ambu- 
lance 

Nurse 
Hire 

Average 
Benefit 
to 
Employe 

3.... 

1 

$   4.70 

$    5.28 

$   9  98 

7 

1 

lO.OOj 

10.65 

20.65 

10  

1 

6.19 

4.50 

10  69 

11 

1 

50.00 

5.00 

55  oo 

15  

2 

61.34 

19.00 

40  17 

18 

4 

39.97i 

63.50 

$12.00 

115.47 

19 

1 

5  50 

5  50 

21 

1 

5.00 

5  00 

22 

1 

27  21 

15  00 

42  21 

23 

1 

10.00 

10.60 

20  60 

25 

1 

10  50 

23  00 

33  50 

29.. 

1 

10.00 

3.00 

2.00 

15  00 

30 

1 

11.92 

4.00 

15  92 

31  

2 

31.65 

25.00 

28  32 

32 

1 

15.00 

10.00 

25  00 

35  

1 

15.75 

49.00 

64  75 

36 

1 

24.39 

12.00 

36  39 

37  

1 

19.23 

20.00 

39  23 

40  

1 

94.17 

52.50 

23.00 

169.67 

42  

1 

23.00 

16.00 

39  00 

58 

1 

54.96 

40.00 

94  96 

61  

1 

53.00 

32.00 

85  00 

63 

1 

90.00 

29  00 

119  00 

64  

1 

45.71 

15.00 

60  71 

69      .. 

1 

11.40 

26.50 

37  90 

105  

1 

83.25 

179.35 

262  60 

177  

1 

132.13 

30  00 

162  13 

Totals 

32 

$945.97 

$699.88 

$37.00 

WORKMEN'S  COMPENSATION  LAW 


45 


Incident  to  Employment 


No. 
Days 

No. 
Cases 

Compen- 
sation 

Medical 
Atten- 
tion 

Hospital 
Services 

Ambu- 
lance 

Nurse 
Hire 

Average 
Benefit 
to 
Employe 

1 

1 

$    2.00 

$    2.00 

$   4  00 

2 

5 

28  80 

7  97 

7  35 

3.     . 

8 

128.27 

24.00 

19  03 

4 

6 

48  48 

33.70 

13  69 

5..   .. 

6 

52.50 

28.00 

13.41 

6 

7 

107  89 

31.20 

19  87 

7  

4 

59.35 

12.00 

17.83 

8 

4 

50.25 

134.75 

46  25 

9  

6 

88.15 

64.02 

25.36 

10 

9 

181.95 

115.24 

32  79 

11 

6 

104  92 

83.75 

31  44 

12 

4 

92.65 

103.00 

$   2.90 

49.61 

13 

'    2 

50.32 

16  00 

33  16 

14  

1 

14.00 

9.00 

23.00 

15 

7 

77  81 

73  10 

21  55 

16  —  .. 

4 

34.82 

54.95 

$      .75 

22  65 

17 

11 

103.75 

160.50 

5  00 

24  02" 

18  

13 

48.57 

113.50 

20.00 

14.  Oft 

19 

5 

65  03 

66.45 

24  29' 

20  

13 

139.93 

120.20 

20.01 

21 

8 

57.19 

88.70 

18  2£ 

22  

14 

166.80 

99.25 

1.60 

19.11 

23 

o 

54.78 

162.25 

1.50 

27  31 

24  

10 

149.41 

115.00 

26.  44 

25 

7 

110.15 

70  80 

25  85 

26  

8 

197.87 

111.00 

1.00 

38.  73. 

27 

8 

175.30 

96.50 

12.00 

35  47 

28  

11 

151.39 

278.40 

2.50 

39.20 

29 

5 

100.48 

130.90 

46  27 

30  

13 

278.59 

309.75 

1.40 

45.35 

31.    .. 

9 

130.99 

96.00 

25  22 

32  

4 

66.17 

95.00 

40.29 

33 

4 

92.51 

90.00 

45  62 

34  

6 

111.14 

54.75 

27.64 

35  

6 

172.32 

67.50 

39  97 

36 

4 

89  51 

85  50 

43  75 

37  

2 

59.23 

12.00 

35  61 

38 

3 

144.00 

127.00 

90  33 

39  

3 

61.25 

147.70 

69  65 

40. 

4 

140.48 

156.40 

74  22 

41 

4 

187  71 

155  35 

85  76 

42...   . 

4 

216.93 

150.50 

91  85 

43 

3 

118.49 

31.45 

4.00 

57.31 

44  

1 

18.54 

40.25 

58  79 

45.... 

1 

26.50 

69.00 

95.50 

46 


STATE  DEPARTMENT  OF  LABOR 


I  iicii l« -n(  to  Employment — ( Continued ) 


No. 
Days 

No. 
Cases 

Compen- 
sation 

Medical 
A  t  ten- 
tion 

Hospital 
Services 

Ambu- 
lance 

' 
Nurse 
Hire 

Average 
Benefit 
to 
Employe 

46 

2 

$56  76 

$55  00 

$55  88 

47 

2 

77.00 

50.50 

$16.80 

72  15 

48 

4 

124  65 

151.65 

ex  ')? 

49 

2 

87.50 

54.00 

70  75 

50 

3 

99  60 

71.50 

57  03 

61 

5 

166  92 

168  50 

$24  05 

71  89 

52 

3 

53  49 

2.50 

18  66 

54 

2 

51  00 

38  00 

1  50 

45  25 

55 

2 

112.45 

78.50 

95  47 

56 

2 

85  24 

35  00 

60  12 

57 

6 

491.84 

206.00 

10.00 

117.97 

58 

1 

40  00 

35.00 

75  00 

59 

2 

109.67 

60.00 

84.83 

60 

1 

68  60 

35.00 

103  60 

61 

2 

139  20 

107  20 

62 

3 

182  25 

51.50 

77  91 

63 

1 

350.00 

60.00 

2.00 

412.00 

64 

1 

15.25 

17.00 

65 

1 

10  00 

21  00 

31  00 

68 

1 

161.36 

134.75 

296  11 

69 

1 

59  00 

87  00 

146  00 

70 

3 

'  217.30 

46.50 

87.93 

71 

1 

560  63 

65  00 

625  63 

72 

1 

77.50 

86.00 

163.50 

75 

1 

107  14 

29  00 

136  14 

76 

2 

183.80 

85.72 

4.30 

136.91 

78 

1 

60  50 

194  00 

254  50 

84 

3 

230.25 

186.15 

138.80 

88 

1 

45  00 

67  00 

112  00 

91 

1 

130.00 

30.45 

160.45 

93 

1 

66.66 

37.00 

103.66 

96 

1 

84.40 

84.40 

97 

1 

95.66 

128.50 

224.16 

98 

1 

217.40 

46.55 

10.00 

273.95 

102 

1 

105.00 

81.00 

186.00 

105 

1 

53  34 

26  00 

79  34 

108 

1 

92.70 

21.35 

3.00 

117.05 

116 

1 

144  00 

35  00 

179  00 

118 

1 

119.36 

37  00 

24.30 

170.66 

124 

1 

I    26  25 

50  00 

30  00 

• 

106  25 

127 

1 

180.00 

106.51 

286.51 

131 

1 

98  43 

150  00 

34  00 

282.43 

136 

1 

226.03 

102.15 

328.18 

164 

1 

1   625.00 

56  10 

t;  s  i  10 

165 

1 

308  13 

90  00 

$  1  00 

398  13 

209 

1 

150.00 

25.00 

175.00 

297 

1 

325.00 

1,116.95 

37.50 

1,460.95 

Not 
given 

13 

539.99 

344.'00 

16.00 

9.00 

908.95 

Totals 

363   , 

12,168.42 

$8,854.41 

$226.15 

$15.90 

$34.05 

WORKMEN'S  COMPENSATION  LAW  47 


"Employers  Liability"  at  Common  Law 

It  is  assumed  that  employers  and  employes  are  alike  interested  in  any 
change  of  conditions  which  affects  their  relation  as  such,  and  therefore  the 
provisions  of  the  "Workmen's  Compensation  Law  of  1913"  and  the  opera- 
tion of  such  law  during  the  first  year  of  its  use  and  application  to  work 
accidents  in  Nebraska  are  of  especial  interest  and  importance  to  both 
employer  and  employe.  To  assist  those  who  are  so  vitally .  interested,  and 
who  desire  to  become  acquainted  with  the  provisions  of  the  compensation 
law  and  its  operations  and  application,  this  bulletin  is  issued. 

It  is  not  the  intention  to  here  enter  into  any  extended  discussion  of  the 
common  law  as  it  heretofore  existed,  with  reference  to  the  relation  of 
master  and  servant;  nor  is  it  the  intention  to  dwell  at  length  upon  the  con- 
ditions and  considerations  which  may  have  influenced  the  legislature  in 
enacting  into  law  the  specific  plan  of  compensation  for  injured  or  killed 
employes,  but  the  purpose  will  have  been  accomplished  if  it  is  stated  in  a 
brief  and  concise  manner  the  common  law  principles  and  statutory  modifica- 
tions thereof,  upon  which  recoveries  for  injuries  to  employes  injured  in  the 
course  of  their  employment  have  heretofore  been  based,  and  the  statutory- 
rule  giving  to  the  dependents  or  legal  representatives  of  killed  employes  a 
right  of  action  against  the  employer,  and  the  changes  wrought  in  such 
common  law  and  statutory  rules  by  the  compensation  law. 

The  principles  of  the  comomn  law,  except  as  it  may  have  been  modi- 
fied by  statute,  have  heretofore  determined  the  right  of  an  employe  to 
recover  from  his  employer  for  an  injury  received  during  the  course  of  his 
employement,  and  the  right  of  recovery  depended  solely,  in  the  first  instance, 
on  whether  the  employer  had  been  negligent  in  performing  some  duty  to- 
ward the  employe  imposed  upon  him  by  law,  or  implied  from  the  contract 
of  employment. 

The  contract  of  employement  under  the  common  law  imposed  the 
obligation  upon  the  employer  to  use  ordinary  care  in  the  following  par- 
ticulars : 

1.  In  furnishing  his  employes  a  safe  place  in  which  to  work. 

2.  In  furnishing  safe  tools  and  machinery  with  which  to  work. 

3.  In  making  reasonable  rules  and  regulations. 

4.  In  the  selection  of  reasonably  competent  persons  to  assist  in  the 
work  to  be  done. 

The  contract  of  employment  likewise  imposed  certain  obligations  to  be 
observed  by  the  employe,  among  which  were: 

1.  That  he  should  use  ordinary  care  to  avoid  injury  to  himself. 

2.  That  he  should  obey  and  observe  such  reasonable  rules  and  regula- 
tions as  might  be  formulated  by  the  employer  for  the  orderly  disposition  of 
the  work  in  hand,  and  for  the  safety  of  employes  generally. 


48  STATE  DEPARTMENT  OF  LABOR 

3.  That  he  should  assume  such  ordinary  risks  as  are  incident  to  the 
employment. 

4.  That  he  should  assume  the  risk  of  injury  received  on  account  of  the 
negligence  of  his  fellow  servants. 

The  failure  of  the  employer  to  so  use  ordinary  care,  which  is  such  care 
as  the  ordinary  prudent  man  would  exercise  under  like  circumstances  and 
conditions,  renders  the  employer  liable  in  damages  for  any  injury  that  may 
result  to  his  employe — provided  always  that  the  employe  has  himself 
observed  the  conditions  imposed  upon  him  by  the  contract  of  employment. 

It  will  be  observed  that  the  employer  is  never  liable  in  damages  for 
an  injury  to  his  employe  unless  he  has  failed  to  exercise  "ordinary  care" — in 
other  words,  unless  he  is  negligent  in  failing  to  perform  the  duties  on  his 
part  to  be  performed,  which  are  imposed  upon  him  by  law,  or  are  implied 
by  the  contract  of  employment.  Neither  is  the  employer  liable,  although 
negligent,  if  at  the  time  of  receiving  his  injury,  the  employe  himself  was  not 
exercising  due  care  for  his  own  safety,  and  such  failure  on  his  part  to  so 
exercise  due  care  contributed  in  any  degree  to  his  injury. 

We  believe  the  foregoing  to  be  a  fairly  accurate  statement  of  the 
common  law  principle  governing  in  all  cases  where  an  embloye  seeks  to 
recover  damages  from  his  employer  for  an  injury  received  in  the  course  of 
his  employment,  and  in  the  practical  application  of  the  law  in  contested 
cases,  where  the  fact  of  injury  itself  is  not  contested,  the  employer  may 
plead  and  prove  as  a  defense  the  violation  by  the  employe  of  any  one  of  the 
obligations  imposed  upon  him  by  the  contract  of  employment,  in  which 
event,  he  is  said  to  assert  the  "common  law  defenses"  which  are: 

1.  That  the  employe  was  not,  when  injured,  in  the  exercise  of  due  care 
or  was  guilty  of  contributory  negligence. 

2.  That  the  injury  received  by  the  employe  was  one  of  the  risks  inci- 
dent to  the  contract  of  employment. 

3.  That  the  injury  was  the  result  of  the  negligence  of  a  fellow  servant. 
These  defenses  are  commonly  referred  to  as  "contributory  negligence," 

"assumption  of  risk"  and  "the  fellow  servant  rule." 

It  will  thus  be  seen  that  by  the  common  law  rule  the  employe  assumes 
all  the  ordinary  risks  incident  to  his  employment,  and  that  his  employer  is 
only  liable  when  he  is  guilty  of  negligence  and  the  employe  is  wholly  free 
from  negligence  and  his  injury  was  not  caused  by  the  negligence  of  a  fellow 
servant. 

The  common  law  gave  no  right  of  action  to  the  personal  representative 
of  a  killed  employe  on  account  of  the  death  of  such  employe. 

Defenses  Under  the  Common  Law 

For  a  breach  of  duty  to  an  employe  resulting  in  injury,  an  action  will 
lie  for  the  recovery  of  damages.  Employers  are  not  insurers,  however,  and 
are  liable  for  the  consequences,  not  of  danger,  but  of  negligence.  Some  duties 
are  by  statute  made  obligatory  upon  the  employer  to  such  an  extent  as 
practically  to  fix  his  liability  in  case  of  injuries  entailed  by  their  omission. 
Apart  from  such  enactments,  however,  the  employer  may,  in  case  of  an 


WORKMEN'S  COMPENSATION  LAW  49 

action  for  damages,  offer  a  defense  based  on  the  principle  expressed  in  the 
maxim,  "Volenti  non  fit  injuria;"  or  he  may  undertake  to  prove  the  plain- 
tiff's assumption  of  the  risk,  or  his  contributory  negligence;  or  he  may  rely 
on  the  doctrine  of  common  employment  to  relieve  him  from  liability 

The  principle  of  the  maxim,  "Volenti  non  fit  injuria,"  is  of  general 
application,  the  meaning  of  the  phrase  as  freely  rendered  being  "That  to 
which  a  person  assents  is  not  esteemed  in  law  an  injury."  A  clearer  state- 
ment is  that  by  an  English  judge,  "One  who  knows  of  a  danger  from  the 
negligence  of  another,  and  understands  and  appreciates  the  risk  therefrom 
and  voluntarily  exposes  himself  to  it,  is  precluded  from  recovering  for  an 
injury  which  results  from  the  exposure."  In  brief,  the  injured  person  has 
assumed  the  risk ;  and,  apart  from  the  contractural  relation  of  employer  and 
employe,  there  is  a  considerable  class  of  cases  in  which  this  defense  to  an 
action  for  damages  may  be  interposed.  The  invitation  or  assent  is  not 
necessarily  or  even  commonly  formal,  but  is  inferable  from  conduct  and 
conditions,  often  subsequent  to  the  entrance  upon  the  situation  that  give.-, 
rise  to  the  circumstances  to  which  the  doctrine  is  applied. 

English  courts  have  more  definitely  fixed  the  application  of  the  principle 
than  is  the  case  in  this  country,  where  it  has  been  fully  discussed  in  compar- 
itively  few  juridictions,  but  neither  in  England  nor  in  America  are  the 
authorities  agreed  on  its  application  to  concrete  cases  nor  on  its  relation  to 
the  doctrines  of  contractural  assumption  of  risk  and  of  contributory  negli- 
gence. Many  authorities  hold  that  the  rule  of  the  maxim  covers  the  ground 
of  the  usual  defense  of  assumed  risks  under  the  employe's  contract,  besides 
its  own  field  of  non-contractural  relation,  while  others  regard  the  two 
defenses  as  distinct.  It  may  be  said  here,  however,  that  the  distinction  is 
not  always  maintained,  and  it  is  held  by  some  courts  that  the  person  des- 
cribed as  volens  may  be  better  described  as  negligent,  or,  rather,  that  the 
person  making  the  voluntary  choice  may  be  none  the  less  guilty  of  con- 
tributory negligence.  In  so  far  as  the  liability  of  employers  is  concerned, 
it  appears  that  the  more  general  application  of  the  rule  in  this  country 
follows  the  same  lines  as  are  observed  in  connection  with  the  doctrines  of 
assumed  risks  under  the  contract  of  employment. 

/ 

Contributory  Negligence 

When  a  risk  involves  such  a  degree  of  danger  that  a  prudent  man  would 
not  assume  it,  the  defense  to  an  action  by  an  injured  employe  is  not  that 
the  plaintiff  by  his  contract  assumed  the  risk,  but  that  he  was,  by  his  con- 
duct, guilty  of  contributory  negligence.  The  line  is  not  clearly  drawn 
between  the  two  defenses,  nor  is  it  always  easy  to  do  so,  inasmuch  as  the 
facts  in  a  given  case  may  support  either  defense.  The  principles  are  dis- 
tinct, however,  as  assumption  of  risk  is  an  implied  or  actual  agreement,  en- 
tered into  before  the  happening  of  the  accident,  to  waive  compensation  from 
the  employer  for  injuries  resulting  therefrom;  or,  it  is  an  incident  of  the 
contract,  read  into  it  by  the  fixed  rules  of  law.  If,  however,  there  has  been 
contribtuory  negligence,  there  is  no  reference  to  either  contract  or  status  to 


50  STATE  DEPARTMENT  OF  LABOR 

determine  rights,  but  only  to  the  conduct  of  the  employe.  If  under  all  the 
attendant  circumstances  he  fell  short  of  reasonable  and  ordinary  care,  the 
defense  of  contributory  negligence  will  lie  against  him. 

The  rule  is  announced  by  Cooley  as  follows:  "If  the  plaintiff  or  party 
injured,  by  the  exercise  of  ordinary  care  under  the  circumstances,  might 
have  avoided  the  consequences  of  the  defendant's  negligence,  but  did  not, 
the  case  is  one  of  mutual  fault,  and  the  law  will  neither  cast  all  the  con- 
sequences upon  the  defendant,  nor  will  it  attempt  any  apportionment  there- 
of." The  contributory  negligence  must  be  thaf  of  the  party  injured;  that 
of  a  fellow-servant  co-operating  with  the  negligence  of  the  master  being 
no  defense  to  the  latter  for  injuries  resulting  from  the  combined  negligence. 

Coarse  of  Employment 

It  may  occur  that  an  injured  person  received  his  injury  under  circum- 
stances that  raise  the  question  whether  or  not  the  accident  occurred  as  the 
result  of  his  employement  within  its  true  bounds.  Such  a  question  arises, 
for  instance,  when  an  employe  is  being  transported  on  a  vehicle  owned  or 
operated  by  his  employer.  If  the  injury  was  received  while  he  was  being 
transported  for  the  purpose  of  forwarding  the  undertaking  for  which  he  was 
engaged,  it  will  be  regarded  an  incident  of  his  employment,  and  the  rules 
as  to  assumption  of  risks  will  control.  The  possible  negligence  of  the 
employe  engaged  in  operating  a  train  on  which  a  bridge  gang  is,  according 
to  custom,  being  conveyed  to  the  place  of  its  actual  work  is  such  a  risk  as 
would  ordinarily  be  contemplated  in  accepting  such  employment.  The  same 
rule  will  apply  to  the  negligence  of  other  classes  of  employes,  as  track 
hands,  if  their  negligence  would  not  have  furnished  ground  of  action  if  the 
injured  employe  had  been  actually  at  work  at  the  time  of  his  injury. 

If,  however,  the  employe  was  traveling  entirely  for  his  own  purposes, 
and  was  not  at  the  time  subject  to  the  orders  of  his  employer,  the  relations 
of  master  and  servant  will  be  held  to  be  suspended,  and  the  injured  person 
will  have  the  rights  of  a  stranger.  In  a  Pennsylvania  case  it  was  held  that 
an  employe  who  received  transportation  to  and  from  the  place  of  his 
employment  as  a  part  of  his  compensation  was  entitled  to  redress  as  a 
passenger  in  the  event  of  an  accident  inflicting  injury.  The  same  view 
seems  to  have  been  taken  by  the  supreme  court  of  Washington,  while  in 
New  York  this  ruling  was  condemned,  and  the  fact  of  transportation  being 
considered  as  part  payment  for  his  services  was  held  not  to  take  the  case 
out  of  the  rule  stated  in  the  paragraph  above.  The  courts  of  Kentucky, 
Massachusetts,  Pennsylvania,  and  Tennessee  have  allowed  recovery  for 
injuries  received  by  employes  riding  on  trains  or  street  cars  at  the  close  of 
the  day's  work  or  for  meals  without  payment  of  fare,  the  view  being  taken 
that  such  transportation  was  not  connected  with  the  performance  of  their 
duties,  which  were  at  an  end  for  the  time,  and  that  they  had  no  connection 
with  the  operation  of  the  vehicle  on  which  they  rode. 

The  variety  of  facts  involved  in  cases  presenting  the  question  of  course 
of  employment  is  so  great  that  it  would  practically  require  an  enumeration 
of  the  decisions  to  present  the  attitude  of  the  courts  thereon.  The  general 


WORKMEN'S  COMPENSATION  LAW  61 

rule  has  been  mentioned,  i.  e.,  that  the  employer  is  not  liable  for  injuries 
incurred  by  employes  going  beyond  the  scope  of  their  employment.  They 
approximate  the  condition  of  volunteers,  with  whom  they  are  sometimes 
classed.  By  the  term  "volunteers"  is  meant  persons  not  in  the  service  of 
the  employer  prior  to  their  engaging,  without  authorization,  in  the  employ- 
ment at  which  they  received  the  injury  complained  of,  and  their  situation  is 
in  general  no  better  than  that  of  trespassers.  They  are  held  to  have 
assumed  the  limitations  of  servants  without  acquiring  the  right  to  claim  the 
performance  of  a  master's  duties  toward  them.  They  will  be  protected  from 
wanton  injuries  at  the  hands  of  the  regular  employes,  however,  and  the 
circumstances  may  be  such  that  they  will  be  held  to  warrant  a  service  ren- 
dered at  the  invitation  of  persons  not  ordinarily  authorized  to  hire  employes 
so  as  to  give  to  injured  volunteers  a  right  to  recover.  Or  it  might  be  said 
that  the  situation  of  the  persons  so  employed  is  modified  so  that  they  are 
no  longer  regarded  as  volunteers,  at  least  not  as  trespassers. 

The  reason  for  the  rule  as  to  volunteers  is  that  no  one  can  be  subjected 
to  the  obligations  of  an  employer,  which  are  the  result  of  contract,  without 
his  consent  thereto,  either  express  or  implied.  This  being  the  case,  the 
situation  of  a  person  undertaking  to  render  service,  either  on  his  own  motion 
or  at  the  invitation  of  an  unauthorized  person,  gains  nothing  from  the  fact 
that  the  danger  was  not  appreciated.  This  prevents  exceptions  in  behalf  of 
minors,  though  in  some  jurisdictions  they  are  regarded  as  trespassers  when 
they  are  too  young  to  be  charged  with  discretion,  and  thus  a  greater  degree 
of  caution  must  be  exercisd  in  their  behalf. 

The  "Fellow  Servant"  Rule 

The  remaining  defense  to  an  employe's  action  for  damages  is  what  is 
known  as  the  'fellow-servant"  rule,  or  the  doctrine  of  common  employment. 
According  to  this,  where  the  employer  has  discharged  his  duties  as  to  a  safe 
place,  safe  and  suitable  appliances,  competent  fellow-servants,  etc.,  he  is  not 
liable  to  an  employe  for  the  acts  or  negligence  of  any  mere  fellow-servant 
or  co-employe,  provided  such  co-employe  does  not  represent  the  employer. 
Or,  as  it  has  been  otherwise  stated,  "A  master  is  not  bound  to  indemnify 
one  servant  for  injuries  caused  by  the  negligence  of  another  servant  in 
the  same  common  employment  as  himself,  unless  the  negligent  servant 
was  the  master's  representative."  If,  however,  the  negligence  of  a  co- 
servant  concurs  with  the  negligence  of  an  employer  in  causing  the  injury, 
the  injured  employe  not  contributing  thereto,  the  employer  will  be  liable  in 
damages. 

The  well  known  diversity,  not  to  say  confusion  and  contradictoriness  of 
the  rulings  of  the  courts  as  to  the  application  of  this  rule,  arises  from  the 
lack  of  precise  and  generally  accepted  definitions  of  the  idea  of  common 
employment  and  of  representation  of  the  master.  The  relations  of  this 
doctrine  to  the  other  elements  which  determine  employer's  liability  are  such 
that  practically  all  that  has  been  said  with  reference  to  the  duties  of  the 
employer  and  the  assumption  of  risks  by  the  employe  must  be  read  in  the 
light  of  the  rulings  of  the  jurisdictional  courts  on  the  subject,  although  the 
principals  involved  are  held  to  those  of  general  law.  In  an  opinion  on  a 


52  STATE  DEPARTMENT  OF  LABOR 

fellow-servant  case  which  was  before  the  Supreme  Court  of  the  United 
States,  a  few  years  ago,  it  was  said  that  "there  is  perhaps  no  mattter  upon 
which  there  are  more  conflicting  and  irreconcilable  decisions  in  the  various 
courts  of  the  lan'd  than  the  one  as  to  what  is  the  test  of  common  service, 
such  as  to  relieve  the  master  from  liability  for  the  injury  of  one  servant 
through  the  negligence  of  another.  Not  only  do  the  courts  of  the  various 
States  differ,  in  the  individual  states  are  found  fluctuations  of  opinions  from 
time  to  time,  and  the  acceptance  of  new  standards,  with  departures  from 
former  positions,  so  that  it  is  important  to  know  the  date  of  an  adjudication 
in  order  to  determine  the  present  construction  in  the  state. 

The  attempt  has  been  made  in  a  number  of  states  to  fix  by  statute  the 
relations  of  employes  to  one  another,  and  to  determine  the  liability  of  the 
employer  for  their  acts  of  negligence;  and  this  would  appear  to  be  the  only 
practical  method  of  attempting  a  solution  of  the  problem  as  it  exists  to-day. 
It  must  be  confessed,  however,  that  even  where  statutes  of  different  states 
are  closely  similar  if  not  identical  in  phraseology,  the  effect  of  local  inter- 
pretations is  apparent  in  the  varying  constructions  adopted. 

The  common  law  rule  was  enounced  in  England  ant  America  at  about 
the  same  time,  apparently  independently,  and  to  practically  the  same  effect. 
Subsequent  developements  have  been  more  favorable  to  the  employe  in  this 
country  than  in  England,  however,  some  states  having  apparently  lost  sight 
of  the  foundations  of  the  rule. 

The  reasons  offered  by  the  courts  for  the  rule  have  been  various,  one 
being  found  in  the  view  that  the  master's  responsibility  is  at  an  end  when 
he  has  used  ordinary  care  to  employ  competent  servants.  It  is  held  that  the 
employe  assumes  the  risk  of  the  possible  negligence  of  a  co-employe  as  one 
of  the  incidents  of  the  employment.  In  another  opinion  of  the  Supreme 
Court  it  was  said  that  the  obvious  reason  for  exempting  the  employer  from 
liability,  is  that  the  employe  has  or  is  supposed  to  have  such  risks  in  con- 
templation when  he  engages  in  the  service,  and  his  compensation  is  arranged 
accordingly,  so  that  he  can  not  in  reason  complain  if  he  suffers  from  a  risk 
which  he  has  voluntarily  assumed,  and  for  the  assumption  of  which  he  is 
paid.  Another  reason  is  found  in  alleged  grounds  of  public  policy,  as  tend- 
ing to  make  the  employes  more  watchful  over  their  own  conduct  and  that 
of  their  fellows  ,thus  benefiting  employers,  employes  and  the  public  alike 
by  the  greater  care  with  which  they  perform  their  duties.  In  close  connec- 
tion herewith  is  the  claim  that  any  marked  enlargement  of  liability  to 
capital  would  lead  to  the  withdrawal  of  capital  from  industrial  enterprise, 
thus  reducing  the  opportunities  of  employment  and  inflicting  damage  upon 
the  whole  community. 

Each  of  these  reasons  has  been  the  subject  of  adverse  criticism,  and  no 
one  of  them  seems  to  give  a  satisfactory  ground  for  excepting  employes 
from  the  benefits  of  the  doctrine  of  respondeat  superior,  or  for  compelling 
the  employe  to  bear  the  burden  of  "pure  accidents"  which  occur  in  the 
prosecution  of  undertakings  the  advantage  of  which  are  to  be  reaped  by  the 
employer.  The  last  two  reasons  mentioned  above  have  perhaps  been  most 
frequently  relied  on  as  supporting  the  customary  rule,  though  no  such 
results  as  are  therein  indicated  have  followed  the  adoption  of  statutes 


WORKMEN'S  COMPENSATION  LAW  53 

greatly  enlarging  the  rights  of  employes  to  recover  for  injuries  following 
upon  industrial  accidents. 

The  chief  points  requiring  determination  in  any  action  involving  the 
principles  under  consideration  are  those  of  common  employment  and  of 
representative  capacity.  If  it  appears  that  the  injuries  complained  of  are 
the  result  of  the  negligence  of  a  co-employe,  the  only  hope  of  the  plaintiff 
lies  in  showing  that  the  negligent  person  was  a  vice-principal,  representing 
the  master  at  the  time,  and  so  devolving  upon  him  a  liability  for  the  acts  or 
omissions  charged. 


Assumption  of  Risks 

When  a  contract  of  employment  is  entered  upon,  the  law  imports  into 
the  agreement  an  assumption  by  the  employe  of  the  ordinary  risks  incident 
to  the  employment,  and  of  such  other  risks  as  may  be  known  to  and  appre- 
ciated by  him.  This  is  said  to  be  a  term  of  the  contract,  express  or  implied 
from  the  circumstances  of  the  employment.  One  seeking  employment  im- 
pliedly  represents  that  he  is  capable  therefor,  and  that  he  comprehends  the 
ordinary  risks.  Another  view  of  the  defense  is  that  it  does  not  arise  from 
the  contract  of  employment,  but  from  the  status  of  the  employer  and 
employe  as  fixed  by  common  law,  and  is  over  and  above  the  contract,  being 
imposed  by  law  upon  the  parties  thereto,  regardless  of  their  desires. 

Ordinarily  the  promise  becomes  effective  as  soon  as  made,  but  if  ful- 
fillment is  set  for  some  indicated  period  the  employer  does  not  become 
liable  under  it  until  the  arrival  of  the  time  indicated.  The  special  res- 
ponsibility of  the  employer  continues  for  a  reasonable  period  only,  regard 
being  had  for  the  circumstances  of  the  individual  case.  A  complaint  by  an 
employe  is  in  effect  a  declaration  that  he  will  no  longer  continue  in  service 
under  the  conditions  of  danger,  while  the  promise  of  the  employer,  so  long 
as  its  validity  continues,  is  said  to  have  established  a  new  relation,  the 
employer  impliedly  agreeing  that  the  employe  shall  not  be  held  to  have 
assumed  the  risk. 

The  question  of  the  employe's  knowledge  is  in  general  controlling,  but 
the  knowledge  may  be  either  actual  or  imputed.  A  workman  of  mature 
years  and  ordinary  intelligence,  offering  himself  for  employment,  is  pre- 
sumed to  know  and  appreciate  the  conditions  and  to  assume  the  risks 
ordinarily  incident  to  the  service  and  to  have  notice  of  all  risks  which,  to 
one  of  his  experience  and  capacity,  are,  or  ought  to  be,  obvious.  He  does 
not  assume  risks  arising  from  conditions  of  which  he  was  actually  and 
excusably  ignorant;  nor  is  he  required  to  use  more  than  ordinary  care  to 
discover  existing  conditions. 

There  is,  however,  one  class  of  cases  in  which  the  question  of  knowledge 
is  not  raised,  and  that  is  where  the  conditions  complained  of  are  the  result 
of  the  employe's  own  choice  or  selection  of  a  course  of  action.  In  such 
cases  the' risk  is  assumed  irrespective  of  any  implied  term  in  his  contract 
of  service,  the  employe ,  being  held  to  be  responsible  for  the  proximate  re- 
sults of  his  own  conduct. 


54  STATE  DEPARTMENT  OF  LABOR 

Ordinary  Risks 

The  determination  of  what  are  ordinary  risks  evidently  becomes  im- 
portant in  view  of  the  fact  that  with  regard  to  them  the  employer  is  re- 
lieved of  all  responsibility,  even  if  the  employe  did  use  ordinary  care, 
unless  by  reason  of  inexperience  or  minority  he  was  not  chargeable  with 
having  assumed  such  risks. 

The  courts  have  sometimes  defined  ordinary  risks  as  those  that  per- 
tain to  the  employment  after  the  employer  has  discharged  his  duty  as  to 
safe  place,  appliances,  etc.,  and  which  ordinary  care  on  his  part  cannot 
guard  against.  Under  another  conception  the  word  "ordinary"  is  held  to 
be  construed  in  its  usual  sense.  This  may  be  taken  to  mean  either  that  the 
risk  is  obviously  a  normal  incident  of  the  employment  that  an  intelligent 
observer  would  recognize  it  as  such,  and  the  dangers  arising  therefrom  as 
constantly  possible  or  it  may  imply  that  the  employment  unavoidably  and 
of  necessity  involves  the  risks,  which  is  much  the  same  as  holding  that  the 
master's  care  can  not  obviate  them. 

These  risks  are  such  as  arise  from  the  negligence  of  fellow-servants, 
unless  the  employer  was  negligent  in  employing  incompetent  workmen;  or 
from  the  nature  of  the  instrumentalities  used;  or  from  the  conditions, 
whether  permanent  or  temporary,  of  the  conduct  and  nature  of  the  busi- 
ness. The  master  can  not  undertake,  for  instance,  to  make  railroad  labor 
or  the  manufacture  of  explosives  as  safe  as  many  other  employments,  and 
the  hazards  of  such  industries  are  held  to  be  assumed  according  to  the 
standard  for  the  industries  themselves.  In  like  manner  works  of  construc- 
tion and  repair,  in  regard  to  which  the  master's  liability  was  found  to  be 
modified,  cast  upon  the  employe  a  correspondingly  larger  degree  of  risk, 
which,  by  this  principle,  he  is  held  to  assume.  This  rule  applies  only  to 
employes  actually  engaged  upon  the  work,  and  the  risks  assumed  are  those 
that  arise  only  from  the  work  in  hand  and  not  from  defects  in  portions  of 
the  work  already  completed. 

Extraordinary  Risks 

Risks  which  may  be  obviated  by  the  exercise  of  reasonable  care  on  the 
part  of  the  employer  are  classed  as  extraordinary,  and  these  the  employe 
is  held  not  to  have  assumed  without  a  knowledge  and  comprehension  of 
the  dangers  arising  from  the  employer's  negligence.  If  the  dangers  are 
patent  or  are  brought  to  the  knowledge  of  an  employe,  his  entering  upon 
or  remaining  in  service  is  presumed  to  have  waived  his  claim  against 
the  employer  for  resulting  damages.  In  the  first  case  he  will  be  held  to 
have  made  his  contract  in  the  light  of  existing  conditions;  and  as  to  risks 
arising  during  employment  it  has  been  said  that  if  a  servant  continues  to 
use  an  appliance  which  he  knows  to  be  dangerous  he  does  so  at  his  own 
risk  and  not  at  that  of  his  employer.  It  must  appear,  however,  that  the 
risk  was  actually  appreciated.  While  a  failure  to  notify  the  employer 
of  discovered  or  known  risks  is  construed  as  indicating  the  employe's 
willingness  to  continue  to  work  while  they  exist,  the  risk  is  not  thrown 


WORKMEN'S  COMPENSATION  LAW  55 

upon  the  employer  by  a  mere  notification  not  replied  to  by  his  promise  to 
repair.  If  the  alternative  of  continuing  to  work  with  the  defective  appli- 
ance or  of  leaving  the  employment  is  offered,  and  the  employe  continues  to 
work,  he  will  be  held  to  have  assumed  the  risk.  A  promise  to  repair  can 
be  relied  upon  only  for  a  reasonable  time,  after  which  the  risk  will  be  upon 
the  employe. 

\ 

Common  Employment 

What  constitutes  common  employment?  It  was  said  in  a  leading  case 
that,  "prima  facie,  all  who  enter  into  the  employ  of  a  single  master  are 
engaged  in  a  common  service,  and  are  fellow-servants,"  but  this  broad 
statement  will  not  answer  as  a  conclusive  test.  Not  only  employment  by  a 
common  master,  but  also  engagement  in  the  performance  of  duties  that 
may  reasonably  be  said  to  tend  to  the  accomplishment  of  the  same  end 
is  necessary  to  meet  general  acceptance  by  the  courts;  nor  is  it  a  suffi- 
cient answer  to  say  that  all  serve  the  profit  or  convenience  of  a  common 
employer.  While  another  servant  than  the  plaintiff,  employed  for  a  pur- 
pose entirely  different  from  his  duties,  has  negligently  caused  the  injury 
complained  of,  it  may  well  be  said  that  they  are  not  fellow-servants.  But 
even  with  this  qualification  the  statement  is  not  definite  enough  to  be  of 
much  use  in  determining  particular  cases,  and  the  impressions  used  by 
judges  in  passing  on  the  question  of  common  employment  throw  little  light 
on  the  subject.  "Engaged  in  the  same  general  business,"  "the  same  gen- 
eral undertaking,"  or  "in  promoting  one  common  object,"  are  frequent  modes 
of  expression,  though  in  other  cases  the  somewhat  more  restricted  phrases, 
"services  having  an  immediate  common  object"  or  "working  in  the  same 
place  to  subserve  the  same  interests,"  are  used.  The  question  involves 
both  law  and  facts,  but  where  the  latter  are  undisputed,  the  decision  be- 
comes simply  a  matter  of  law,  and  the  trial  jury  will  not  pass  upon  it.- 

Preventable  Accidents 

What  are  termed  "preventable  accidents"  will  not  be  prevented,  solely, 
by  the  installation  of  safety  devices  and  methods.  If  they  are  to  be  pre- 
vented it  will  be  largely  due  to  the  co-operation  of  the  workman  with  his 
employer  in  a  careful  endeavor  to  avoid  accidents.  The  point  to  keep 
firmly  in  mind  is  that  no  system  for  compelling  the  installation  of  safety 
appliances,  enforced  by  law,  or  executive  order,  will  be  effective  unless  the 
workman  lends  his  serious  attention  to  the  object  and  purpose  of  the 
safety  installations.  The  fact  that  every  accident  now  costs  the  business 
a  fixed  sum  of  money  is  a  powerful  factor  in  arousing  the  employers  to 
take  active  measures  toward  the  prevention  of  accidents;  but  this  is  only 
a  part  of  the  successful  measures  that  minimize  accidents.  The  workman 
himself  must  contribute  the  main  factor  to  bring  about  this  most  desirable 
elimination  of  preventable  accidents.  He  can  do  it  if  he  will.  If  he  will 
but  realize  that  compensation  is  a  poor  substitute  for  loss  of  life  and  limb, 


56  STATE  DEPARTMENT  OF  LABOR 

or  health,  it  will  surely  awaken  his  sensibilities  to  the  fearful  burden  that 
he  voluntarily  places  on  his  shoulders  by  being  thoughtless,  careless, 
slovenly  or  incautious  and  unmindful  of  the  work  he  is  engaged  in. 

Compensation  is  an  economic  way  of  meeting  the  hazards  that  attend 
industry.  Its  co-efficient  is  "Safety"  and  to  the  instilling  of  this  faculty 
in  the  minds  of  everyone,  we  must  look  for  and  expect  a  decrease  of  the 
distressing  accidents  that  have  been  unnecessarily  attending  hazardous 
employments. 

The  vital  end  to  reach  at  this  time  is  that  of  impressing  on  the  minds 
of  those  who  work  in  dangerous  pursuits  the  necessity  of  constant  caution. 
An  ever-present  interest  in  the  thing  being  done  and  the  safe  way  to  do  it, 
will  in  most  cases  prevent  accidents.  Eliminate  negligence  by  installing 
prudence,  discard  carlessness  for  expert  and  scientific  interest  in  the  work 
in  hand  and  accidents  with  their  terrible  results  will  be  rendered  to  the 
minimum. 

Unavoidable  Accidents 

All  accidents  classified  as  unavoidable  should  be  carefully  investigated 
by  the  employer  and  the  causes  removed  or  provided  against  insofar  as 
the  business  or  industry  will  permit.  The  prevention  of  accidents  should 
be  the  first  consideration  in  all  hazardous  occupations.  It  saves  money, 
saves  time,  prevents  accidents,  prevents  suffering,  improves  conditions 
and  creates  higher  industrial  ideas.  Safety  both  saves  and  pays  and  by 
effective  mutual  organization  and  co-operation  changes  can  be  brought  about 
whereby  "preventable  injury  losses"  can  be  changed  to  profits,  with  all  the 
other  benefits  that  such  a  change  implies. 

Of  course,  it  cannot  be  claimed  that  accidents  will  not  happen  regard- 
less of  precaution.  It  is  acknowledged  that  in  spite  of  the  organizations 
and  the  most  impressive  admonitions,  that  machinery  will  fail  and  human 
judgment  be  at  fault.  This  is  a  deplorable  fact,  perhaps  inseparable  from 
our  economic  life.  Nevertheless,  accidents  that  result  from  carelessness, 
thoughtlessness,  ignorance  or  absent  mindedness  can  and  should  be  avoided. 
Mind  wandering  from  the  actual  work  that  the  employe  is  engaged  in  is 
probably  one  of  the  most  fruitful  sources  of  accidents.  The  workman 
who  goes  about  his  work  as  though  he  were  in  a  trance  is  sure  to  come 
to  grief. 

Compensation  laws  and  safety  provisions  are  made  for  the  workman. 
He  is  not  expected  to  be  a  subjective  beneficiary  only  but  an  active  agent 
in  forestalling  these  unfortunate  happenings  which  necessitate  compensa- 
tion laws. 

Every  intelligent  human  being  knows  that  nothing  "just  happens." 
Everything  is  the  result  of  an  efficient  cause.  So-called  unavoidable  acci- 
dents can  be  traced  to  a  falling  short  in  observation,  experience  or  judg- 
ment in  one  form  or  another.  Detailed  investigation  will  nearly  always 
show  that  if  the  unfortunate  had  given  closer  observation,  or  more  attentive 
care  to  what  he  was  doing  and  had  exercised  thoughtful  caution  and  clear 
judgment,  that  the  accident  would  not  have  occurred. 


WORKMEN'S  COMPENSATION  LAW  57 

Employes  with  known  caution  and  thoughful  carefulness  are  every- 
where preferred  to  a  reckless  worker,  who  may  bring  disaster  upon  him- 
self and  expense  to  his  employer  through  lack  of  caution.  Carefulness 
should  become  an  object  of  intelligent  appreciation  and  a  part  of  the 
necessary  equipment  of  an  employe  engaged  in  hazardous  occupation. 

Promise  to  Repair 

In  cases  where  repairs  are  needed,  and  the  fact  is  known  to  the  serv- 
ant, the  risk  involved  in  continuing  in  the  service  under  the  conditions 
of  disrepair  may  be  shifted  to  the  employer  by  giving  a  promise  to  remedy 
the  defective  conditions.  The  effect  of  the  promise  is  the  same  whether 
it  is  made  in  response  to  a  complaint  by  the  servant  or  voluntarily.  The 
fact  that  a  promise  was  made  does  not  suffice  to  conclude  the  investiga- 
tion, however,  whether  the  question  be  one  of  assumed  risks  or  of  contrib- 
utory negligence.  It  serves  only  to  introduce  new  facts  for  consideration. 

A  mere  complaint  by  an  employe  or  a  surmise  that  the  employer's 
knowledge  of  conditions  will  cause  him  to  make  the  needed  changes  will 
not  suffice  to  cast  the  liability  on  the  master  in  any  different  degree  from 
that  indicated  in  the  discussion  of  his  duties  as  to  repair.  A  definite 
promise  relating  to  the  agency  that  actually  occasioned  the  injury,  or  such 
act  or  expression  as  would  reasonably  give  rise  to  an  inference  of  such 
promise,  is  necessary.  The  promise  must  be  made  by  the  employer  or  his 
representative,  and  must  be  the  inducement  for  the  employe's  continuance 
in  the  situation  where  the  injury  occurred.  (Bodwell  vs.  Nashua  Mfg.  Co., 
1900,  70  N.  H.  390,  47  Atl.  613.) 

Though  the  effect  of  such  a  promise  is  not  entirely  excluded  from  con- 
sideration in  cases  where  it  was  given  before  the  beginning  of  work, 
the  doctrine  applies  chiefly  to  cases  where  it  was  made  subsequent  to  such 
beginning.  It  is  then  held  to  rebut  the  presumption  that  the  employe 
assumed  the  risk  or  that  he  was  guilty  of  contributory  negligence  in  re- 
maining in  a  place  of  known  danger,  though  it  does  not  of  itself  entitle 
an  injured  employe  to  recovery. 

Doctrine  of  Workmen's  Compensation 

The  doctrine  of  "Workmen's  Compensation"  involves  an  abandonment 
of  the  rules  of  employers'  liability  for  industrial  accidents,  as  fixed  by  com- 
mon law  and  by  statute,  and  the  substitution  therefor  of  a  system  which 
will  avoid  long  drawn-out  and  expensive  litigation  in  the  courts,  and 
secure  for  every  workman  injured  in  the  course  of  employment,  a  limited 
amount  of  compensation,  based  on  his  earning  capacity  and  the  nature 
of  the  injury. 

The  doctrine  of  compensation  for  industrial  accidents  has  been  sub- 
stituted for  the  civil  action  based  on  fault  or  negligence  in  all  the 
countries  of  continental  Europe,  with  the  exception  of  Switzerland  and 
Turkey.  It  was  first  adopted  in  England  in  1897. 


58  STATE  DEPARTMENT  OF  LABOR 

The  question  of  workmen's  compensation  has'  been  the  subject  of  much 
study  and  investigation  in  our  country  in  recent  years  by  organizations 
representing  both  employers  and  employes,  such  investigations  being  made 
with  the  view  of  ascertaining  whether  it  would  be  preferable,  from  an 
economic  standpoint,  to  substitute  the  principle  of  compensation  for  the 
common  law  and  statutory  rules  based  upon  fault  or  negligence. 

Not  only  is  the  compensation  plan  approved  by  organized  employers, 
but  it  also  has  the  approval  of  organized  labor. 

Modern  economic  conditions  have  resulted  in  two  general  plans  of  com- 
pensation for  injured  employes,  neither  of  which  is  founded  upon  common 
law  principles  of  liability.  Each  plan  contemplates  that  compensation  be 
made  for  every  injury  or  death  occurring  to  an  employe  in  the  course  of 
his  employment,  which  is  not  self-inflicted,  and  eliminates  entirely .  the 
question  of  negligence. 

Chief  Justice  Fullerton,  in  the  course  of  his  opinion  sustaining  the  con- 
stitutionality of  the  Washington  law,  said:  "The  evil  it  seeks  to  remedy  is 
one  that  calls  loudly  for  action.  Accidents  to  workmen  engaged  in  indus- 
tries enumerated  in  it  are  all  but  inevitable.  It  seems  that  no  matter  how 
carefully  laws  for  the  prevention  of  accidents  in  such  industries  be  framed, 
or  how  rigidly  they  may  be  enforced,  there  is  an  element  of  human  equa- 
tion that  enters  into  the  problem  which  cannot  be  eliminated  and  which 
invariably  causes  personal  injuries  and  consequent  financial  losses  to  work- 
men engaged  therein.  Heretofore  these  losses  have  been  borne  by  the 
injured  workmen  themselves,  by  their  dependents,  or  by  the  state  at  large. 
It  was  the  belief  of  the  legislature  that  they  should  be  borne  by  the  in- 
dustries causing  them,  or,  perhaps  more  accurately,  by  the  consumers  of 
the  products  of  such  industries.  That  the  principle  sought  to  be  put  into 
effect  is  economically,  sociologically  and  morally  sound,  we  think  must  be 
conceded. 

"The  common  law  does  not  purport  to  afford  a  remedy  for  the  condi- 
tions found  to  exist.  It  affords  relief  to  an  injured  workman  in  only  a 
limited  number  of  cases;  cases  where  the  injury  is  the  result  of  fault  on 
the  part  of  employer  and  there  is  want  of  fault  on  the  part  of  the  work- 
man. For  the  greater  number  of  injuries  traceable  to  the  dangers  incident 
to  industry,  no  remedy  at  all  is  afforded." 

Advantages  of  Workmen's  Compensation 

There  are,  at  least,  three  very  desirable  direct  advantages  of  work- 
men's compensation  over  common  and  statutory  liability  laws: 

1.  It  secures  promptly  to  the  injured  workman,  and  in  case  of  his 
death,  to  his  dependents,  a  certain  compensation  instead  of  the  often  long 
delayed  and  very  uncertain  final  result  of  a  lawsuit. 

The  compensation,  in  the  first  instance,  is  made  to  fall  upon  the  em- 
ployer, not  as  a  punishment,  not  because  he  was  at  fault,  but  in  order  to 
throw  the  burden  ultimately  upon  those  who  enjoy  the  product. 

Those  who  enjoy  the  product,  ultimately  pay  the  compensation,  and 
should  render  certain  to  the  injured  workman  what  is  justly  due  him  and 


WORKMEN'S  COMPENSATION  LAW  59 

prevent  him  and  his  dependents  fr  om  becoming  the  objects  of  a  most 
undesirable  charity. 

Under  the  old  system  only  a  small  per  cent  of  the  injuries  resulting: 
from  industrial  accidents  were  actually  compensated. 

The  premiums  paid  for  liability  insurance,  and  which  was  considered 
a  legitimate  item  in  the  cost  of  production,  were  largely  expended  in  de- 
fending lawsuits. 

This  system  resulted  in  actual  waste.  It  insured  the  results  of  law- 
suits, and  wholly  failed  to  provide  direct  protection  to  the  workmen  and 
indirect  protection  to  the  public,  as  it  should. 

Under  the  compensation  system,  it  must  be  expected  that  the  number 
of  payments  will  be  greatly  increased,  but  the  elimination  of  the  waste 
incurred  in  the  litigation  of  claims  under  the  old  system  will  certainly  have 
a  material  effect  in  keeping  the  cost  of  compensation  within  reasonable 
limits. 

2.  The  certainty  that  compensation  will  be  paid  is  sure  to  be  con- 
ducive to  the  contentment  of  the  workmen. 

The  elimination  of  the  probability  of  a  lawsuit  between  the  employer 
and  employe,  in  the  event  of  the  injury  of  the  latter,  is  bound  to  be  pro- 
ductive of  a  better  state  of  harmony  and  co-operation  between  them.  It 
may  be  expected  to  reduce  the  probability  of  friction,  discord  and  ill  feel- 
ing and  bring  about  a  closer  and  more  compatible  relationship  between  the 
employer  and  the  employe. 

3.  The  certainty  that  injuries  are  to  be  compensated  is  a  potential 
factor  for  safety.     It  will  compel  the  employer  to  consider  the  causes  of 
injuries  and  the  means  of  preventing  them.     It  is  a  silent,  automatic  and 
constant  argument  for  the  best  working  conditions,   and  the  removal   of 
the  opportunities  for  accidents.     It  pleads  not  merely  for  "safety  first" 
but  for  "safety  all  the  time." 

The  principle  of  social  justice  and  right,  which  underlies,  and  which, 
in  fact,  is  the  foundation  of  workmen's  compensation,  is  that  industry 
should  bear  the  burden  of  its  accidents,  and  that  the  cost  thereof  should 
be  added  to  the  selling  price  of  its  products,  and  be  distributed  among  the 
consumers. 

In  orther  words,  that  the  loss  occasioned  by  accidents  is  as  much  a 
part  of  the  cost  of  the  article  in  the  production  of  which  the  workman 
was  employed  at  the  time  of  the  accident  and  his  injury,  as  is  the  loss 
occasioned  by  the  destruction  of  material,  the  breaking,  the  wearing  out 
and  replacing  of  tools  and  machinery.  If  a  mule  be  kept  and  employed 
alone  in  the  production  of  a  commodity  and  becomes  injured,  the  expense 
of  its  injury  becomes  a  part  of  the  cost  of  production,  even  though  its 
injury  is  not  due  to  its  employment.  There  is  vastly  more  reason  for 
treating  the  expense  of  an  injury  to  a  human  employe  as  a  part  of  the 
cost  of  the  production  of  the  commodity,  when  the  injury  is  caused  by  an 
accident  arising  out  of  and  in  the  natural  course  of  the  production  of  the 
commodity.  Reason  should  cer.tainly  accord  the  expense  of  the  injury  of 
the  human  employe,  caused  by  an  accident  arising  out  of  and  in  the  course 


60  STATE  DEPARTMENT  OF  LABOR 

of  his  employment,  as  close  a  relationship  to  tne  cost  of  the  production 
of  the  commodity  in  which  he  was  engaged  at  the  time  of  his  injury,  as  it 
does  the  expense  of  the  injury  of  the  mule,  caused  by  an  accident  entirely 
outside  of  its  employment. 

The  Supreme  Court  of  Wisconsin  vs.  Miller  (144  N.  W.  188)  announces 
the  rule  that  personal  injury  losses,  not  intentionally  incurred,  arising  out 
of,  and  in  the  course  of  the  production  of  an  article,  whether  occasioned  by 
the  fault  of  the  employer,  or  injured  workman,  or  without  fault  of  either, 
are  as  legitimate  of  the  value  of  the  money  cost  of  the  production  of  the 
commodity  as  are  expenses  for  raw  material,  for  machinery  or  wages. 

The  doctrine  that  an  employer  or  the  product  that  he  is  manufacturing, 
or  producing,  shall  be  responsible  for  the  cost  of  injuries  occurring  to 
workmen,  without  any  consideration  as  to  where  the  fault  may  lie,  is 
almost  a  complete  reversal  of  the  rules  of  common  law,  governing  statu- 
tory liability  of  employers.  The  fact  that  the  compensation  law  not  only 
makes  it  possible,  but  legal,  that  the  injured  employe  may  recover  from 
his  employer  for  injuries  received,  even  though  the  same  may  be  really 
caused  by  his  own  contributory  negligence  or  the  negligence  of  a  fellow 
servant,  or  through  the  inherent  risk  of  the  employment,  is  a  radical  change 
or  abrogation  of  the  common  law  rules  governing  employers'  liability. 

The  operation  of  the  first  year  of  the  Nebraska  Workmen's  Com- 
pensation Law  has  brought  forth  words  of  approval  for  the  principle  of 
compensation  for  work  accidents  from  a  large  number  of  employers  and 
employes,  as  well  as  the  public  at  large,  and  the  consumers,  who  in  the 
end  are  the  real  liguidators  or  bearers  of  the  cost  of  compensation.  Gov- 
ernor Boyle  of  Nevada,  in  his  recent  inaugural  address,  said: 

"Modern  legislation,  of  this  type,  providing  for  compensation  to  the 
victims  of  industrial  accidents,  reflects  the  changed  attitude  of  public  opin- 
ion toward  the  relation  of  employer  and  employe. 

"Under  the  old  system  of  what  was  termed  'Employer's  Liability/  the 
question  of  'fault'  was  the  basis  of  recovery,  and  recovery  by  the  injured 
person  was  made  difficult  and  expensive,  as  a  result  of  court  procedure,  and 
often  impossible  as  a  result  of  court  rulings  out  of  tune  with  our  progres- 
sive and  humanitarian  ideas  of  social  relations  and  social  justice. 

"Workmen's  Compensation  legislation  is  predicated  on  the  theory  that 
industrial  enterprise  creates  a  source  of  danger  and  becomes  responsible 
for  damages  resulting  from  that  source;  that  risk  as  well  as  labor  should 
be  compensated,  and  that  the  industry  should  be  made  to  bear  its  proper 
share  of  the  financial  burden  growing  out  of  industrial  accidents,  rather 
than  permitting  the  full  burden  to  be  borne  by  the  individual  workman  who 
happens  to  be  the  victim  of  a  particular  accident.  Under  this  theory  the 
question  of  'fault'  is  eliminated  and  the  fact  that  an  injury  has  been  sus- 
tained in  any  employment  establishes  automatically  the  right  to  compen- 
sation. 

"The  wisdom  and  justice,  as  well  as  the  true  economy  of  such  legisla- 
tion, is  so  universally  recognized  today  that  argument  in  its  favor  appears 
unnecessary." 


WORKMEN'S  COMPENSATION  LAW  61 

The  Constitutionality  of  Compensation  Laws 

The  declaration  that  an  employer  shall  be  responsible  for  injuries  to 
his  workmen  without  regard  to  the  fault  of  the  employer,  is  entirely  a 
reversal  of  the  common  law  rules,  and  of  statutory  employers'  liability  laws. 
The  doctrine  that  an  employe  may  recover  from  his  employer  for  injuries 
incurred  by  reason  of  his  own  contributory  negligence,  or  the  negligence 
of  a  fellow  servant,  or  on  account  of  the  inherent  risk  of  the  employment 
is  an  abrogation  of  the  rules  of  the  common  law,  but  the  courts  of  the 
United  States  with  almost  complete  harmony  hold  that  the  compensation 
principle  rests  on  a  sound  economic,  moral  and  legal  foundation. 

Among  the  decisions  so  holding  are  the  following: 

Massachusetts  Statute:  Ex  parte  opinion  of  Supreme  Court  justice, 
209  Mass.  607;  96  N.  E.  308. 

Borgnis  vs.  Falk  Company,  147  Wis.  327;  133  N.  W.  224. 

State  vs.  Clausen,  65  Wash.  156;  117  Pac.  1101. 

State  vs.  Creamer,  85  Ohio  St.  349;  97  N.  E.  602. 

Section  vs.  Newark  District  Telephone  Co.,  8^4  N.  J.  L.  85;  86  Atl.  451; 
86  N.  J.  L.  701. 

Cunningham  vs.  Northwestern  Improvement  Co.,  44  Mont.  108;  119 
Pac.  554. 

Stoll  vs.  Pacific  Coast  Steamship  Co.,  205  Fed.  169. 

Mondon  vs.  N.  Y.,  N,  H.  &  H.  Ry.  Co.,  223  U.  S.  1;  32  Sup.  Ct.  Rep. 
169;  56  L.  Ed.  327. 

Deibeikis  vs.  The  Link-Belt  Co.,  261  111.  454;  104  N.  E.  211. 

Crooks  vs.  Tazewell  Coal  Co.,  105  N.  E.  132. 

Dietz  vs.  Big  Muddy  Coal  and  Iron  Co.,  263  111.  480. 

Memphis  Cotton  Oil  Co.  vs.  Tolbert,  171   S.  W.  309. 

Jeffrey  Manf.  Co.  vs.  Blagg,  U.  S.  35;  Sup.  Ct.  Rep.  167. 

Shade  vs.  Ash  Grove  Lime  and  Portland  Cement  Co.,  92  Kan.  146;  139 
Pac.  1193;  144  Pac.  249. 

Zumkehr  vs.  Diamond-Portland  Cement  Co.,  23  Ohio  Dec.  224. 

Pendar  vs.  H.  &  B.  American  Machine  Co.,  87  Atl.  1. 

State  vs.  Mountain  Timber  Co.,  135  Pac.  645. 

Constitutionality  of  Statutes 

An  important  decision  in  a  case  of  first  impression  under  the  present 
statute  has  been  rendered  by  the  Supreme  Court  of  California,  sustaining 
the  constitutionality  of  the  compulsory  law  of  1913,  likewise  compulsory, 
has  also  been  before  the  court  of  that  state  recently  on  questions  of  con- 
stitutionality, the  decision  upholding  the  law  generally  and  applying  it  to  a 
case  in  which  the  injured  workman  was  employed  in  unloading  a  vessel 
which  was  engaged  in  interstate  commerce.  It  was  held  that  until  Congress 
acts  in  behalf  of  such  workmen,  recovery  is  determined  by  the  State  Laws 
of  the  jurisdiction  within  which  the  injury  was  received.  (Jensen  vs. 
Southern  Pacific  Co.,  decided  by  the  New  York  Court  of  Appeals,  July  13, 
1915,  109  N.  E.,  600.) 


62  STATE  DEPARTMENT  OF  LABOR 

Another  interesting  decision  in  the  same  field  was  handed  down  by 
the  Supreme  Court  of  New  York  (appallate  division)  in  the  case  of  Win- 
field  vs.  New  York  Central,  etc.,  R.  Co.  (153  N.  Y.  Supp.,  499).  The  injured 
man  was  concededly  engaged  in  interstate  commerce,  so  that  if  the  injury 
had  been  due  to  the  employer's  negligence  he  would  of  necessity  have  had 
recourse  to  the  Federal  liability  statute.  However,  as  there  was  no  neg- 
ligence, the  injury  being  due  to  pure  accident,  it  was  not  within  the  Federal 
law,  and  the  court  held  that  it  was*  a  case  in  which  Congress  had  not  yet 
acted,  so  that  the  State  law  would  control,  and  affirmed  an  award  made 
in  the  claimant's  favor  by  the  compensation  commission. 

Another  statute  that  received  consideration  at  the  hands  of  the  courts 
this  year  was  that  of  Texas,  the  court  of  civil  appeals  having  held  certain 
provisions  of  the  act  unconstitutional  (Middleton  vs.  Texas  Power  &  Light 
Co.,  178  S.  W.  Rep.  956).  The  act  authorizes  the  employer  to  choose 
whether  or  not  he  will  accept  the  provisions  of  the  act,  but  having  done  so 
his  employes  are  deprived  of  any  right  of  action  against  him  for  damages 
for  personal  injuries,  and  are  restricted  to  such  relief  as  the  statute  in 
question  provides.  The  court  held  that  this  provision  was  void  as  in  viola- 
tion of  the  clauses  of  the  Federal  and  State  constitutions  which  guarantee 
due  process  of  law,  and  also  of  those  clauses  which  forbid  depriving  any 
person  of  the  equal  protection  of  the  laws.  It  was  further  held  that  giving 
the  employer  his  choice  as  to  the  nature  of  the  remedy  which  he  would 
permit  his  employes  was  in  substance  a  delegation  of  legislative  functions, 
and  void  as  an  attempt  to  confer  upon  him  powers  belonging  exclusively 
to  the  legislature.  The  jurisdiction  of  this  court  is  not  final,  and  the  case 
has  been  taken  to  the  supreme  court  of  the  State. 

Has  Proved  Its  Superiority 

The  operation  of  the  principle  of  workmen's  compensation  has  proved 
its  superiority  over  employers'  liability  from  several  standpoints. 

First.  The  prevention  of  accidents.  Ignorance  of  the  machinery  which 
they  operate,  carelessness  and  recklessness  in  its  operation,  stand  out  in 
any  study  of  the  causes  of  accidents.  Personal  equipment  of  the  workman 
for  the  task  he  performs  is  ofttimes  overlooked  and  from  loose,  torn  and 
unsuitable  clothing  accidents  result.  Insufficient  lighting  and  crowding  of 
machinery  contribute  their  quoto  to  which  must  be  added  defective  machin- 
ery and  lack  of  the  use  of  proper  safeguards. 

Under  the  system  of  employers'  liability  in  force  in  practically  all 
countries  previous  to  the  introduction  of  workmen's  compensation,  it  was 
the  negligence  of  the  employer  that  determined  the  right  to  recovery  of 
damage  or  compensation.  This  negligence  had  to  be  clearly  shown  and 
while  the  more  humane  employers  expended  thought  and  money  for  the 
prevention  of  accidents,  the  vast  majority  were  content  to  make  only  slight 
effort  to  minimize  the  number  of  accidents.  With  nearly  every  accident 
entitled  to  compensation,  the  question  of  the  number  of  accidents  and  their 
severity  become  of  financial  importance  and  vast  strides  have  made  in  the 
methods  and  means  used  to  prevent  accidents. 


WORKMEN'S  COMPENSATION  LAW  63 

Second.  Elimination  of  waste.  The  system  of  employers'  liability  is 
wasteful — necessarily  so.  It  is  not  always  easy  to  determine  whether  an 
employer  has  been  negligent  or  not.  With  an  automatic  scale  of  compen- 
sation operative  on  the  occurrence  of  an  accident,  a  large  portion  of  the 
expense  of  investigation,  lawyers'  fees  and  court  costs  are  eliminated. 
The  saving  is  an  important  one. 

Third.  Immediate  payment  of  the  injured  workman  or  his  family.  Under 
employers'  liability  a  considerable  period  usually  elapses  before  payment 
is  made,  and  sometimes  it  is  years  before  settlement  is  reached.  The  com- 
pensation law  provides  for  weekly  payments  or  lump  sum  settlements.  The 
money  is  thus  available  at  the  time  when  most  needed — a  blessing  to  the 
injured  workman  or  in  case  of  his  death,  the  widow  and  children. 

Fourth.  Diminishment  of  friction  between  employers  and  workmen. 
The  operation  of  employers'  liability  laws  tends  to  develop  friction  and 
ofttimes  antagonism  between  employers  and  workmen.  The  injustice  the 
plan  works  in  the  distributon  of  compensation  for  accidental  injuries,  and 
the  fact  that  the  workman  must  prove  his  case  before  payment  is  made, 
is  one  more  cause  preventing  harmonious  relations  between  employer  and 
employe.  Workmen's  compensation  with  prompt  settlements  largely  rem- 
edies this  evil. 

Fifth.  Equitable  method  of  determining  compensation.  One  of  the 
characteristics  of  workmen's  compensation  laws  is  the  method  of  determin- 
ing the  compensation.  A  study  of  the  scale  of  compensation  shows  (a) 
the  compensation  is  made  to  depend  upon  and  vary  with  the  wages;  (b)  it 
is  made  to  depend  upon  and  vary  with  the  extent  of  the  injury. 

Under  employers'  liability  laws  the  damages  or  compensation  assessed 
by  one  jury  for  loss  of  eye  or  limb  may  and  does  differ  radically  from  the 
sum  assessed  by  another  jury  for  identically  the  same  injury.  Workmen's 
compensation  laws  substitute  a  fixed  known  compensation  for  an  unknown 
variable  compensation. 

Sixth.  The  workman  receives  full  compensation  awarded  him.  Under 
employers'  liability  there  has  grown  up  a  class  of  lawyers  known  as  "Am- 
bulance Chasers,"  who  take  advantage  of  the  unfortunate  workman's  neces- 
sity and  often  receive  exorbitant  payment  for  any  real  or  alleged  services 
rendered.  With  the  fixed  compensation  payable  at  stated  intervals  pro- 
vided under  workmen's  compensation  laws  the  workman  receives  the  full 
amount  due  him. 

Seventh.  The  cost  to  employer  a  part  of  cost  of  production.  Under  a 
workman's  compensation  system  nearly  all  accidents  carry  compensation, 
nearly  all  employers  insure  their  liability,  and  the  payments  to  the  in- 
jured workman  are  with  a  certain  degree  of  definiteness  stated  in  the  law. 
Therefore,  the  speculative  feature  is  largely  eliminated,  the  soliciting  ex- 
pense is  lessened,  and  the  determination  of  rates  more  scientific  and  ac- 
curate. The  cost  to  the  employer  becomes  a  fixed  charge  upon  the  indus- 
try, it  enters  into  the  cost  of  the  commodity  as  one  of  the  items  of  produc- 
tion, and  in  the  last  analysis  the  burden  is  transferred  to  the  consumer. 

The  fact  has  been  established  that  there  is  a  certain  accident  risk 
attaching  to  industrial  employments  and  principles  of  justice  and  humanity 


64  STATE  DEPARTMENT  OF  LABOR 

demand  that  the  loss  shall  in  no  event  fall  wholly  on  the  workman.  Sta- 
tistics show  that  a  large  percentage  of  accidents  are  not  due  to  the  negli- 
gence or  fault  of  the  employer,  or  of  the  employe,  but  are  due  to  inevitable 
accidents  connected  with  employment.  The  following  table  taken  from  the 
official  reports  of  Germany  sums  up  the  results  of  an  inquiry  as  to  question 
of  fault  of  81,248  accidents  compensated  for  the  first  time  in  1907: 

Accidents  due  to  Per  Cent 

Fault  of  employer .*. 12.06 

Fault  of  the  workman 41.26 

Fault  of  both  employer  and  workman 91 

Fault  of  fellow  workman   or  third   party 5.94 

General  hazard  of  the  industry 37.65 

Other  causes   (chance,  etc.) 2.18 

Under  employers'  liability  laws,  the  greatest  possible  percentage  of 
accidents  for  which  damages  could  be  obtained  would  be  18.91,  while  prob- 
ably less  than  that  percentage  would  be  chargeable  for  damages. 

For  the  purpose  of  rendering  some  reasonable  compensation  on  account 
of  the  80  per  cent  or  more  of  accidents  occurring  in  industrial  establish- 
ments not  provided  for  under  employers'  liability,  the  principle  of  work- 
men's compensation  is  substituted. 

New  Legislation 

New  compensation  laws  were  enacted  in  1914  in  Kentucky,  Louisiana, 
Maryland  and  a  New  York  statute  of  1913  was  re-enacted  for  the  reason 
that  the  previous  enactment  had  taken  place  after  the  adoption  of  the 
constitutional  amendment,  authorizing  such  a  law,  but  prior  to  its  coming 
into  effect. 

The  Kentucky  statute  was  declared  unconstitutional  by  a  divided  court 
before  it  became  operative.  The  court  held  that,  although  the  act  was 
elective  in  form,  the  provision  as  to  passive  or  presumed  election  on  the 
part  of  the  employes  and  the  abrogation  of  the  defense  of  the  employer 
who  rejected  the  provision  of  the  act,  made  it  compulsory,  and  as  the  act 
thus  constructed,  limited  the  amount  recoverable  for  damages  for  personal 
injuries,  it  was  unconstitutional  in  all  parts. 

During  1915,  compensation  laws  were  enacted  in  Alaska,  Colorado, 
Indiana,  Maine,  Montana,  Oklahoma,  Pennsylvania,  Vermont  and  Wyoming. 
There  are  now  thirty-one  statutes  for  compensation  laws  besides  the  ter- 
ritories of  Alaska  and  Hawaii,  the  Canal  Zone,  the  Philippine  Islands,  and 
the  Federal  law.  The  Oklahoma  legislature  submitted  to  the  people  an 
amendment  to  the  constitution,  authorizing  an  elective  or  compulsory  com- 
pensation law  covering  death,  as  well  as  disability.  The  legislature  of 
Utah  provides  for  a  commission  to  report  to  the  next  legislature  a  sug- 
gested bill.  A  compensation  law  passed  by  both  houses  of  the  Idaho  legis- 
lature was  vetoed  by  the  governor  of  that  state.  The  Missouri  commission 
of  1913  recommended  to  the  legislature  a  carefully  drawn  bill,  but  the 
legislature  of  that  state  declined  to  enact  a  compensation  law. 


WORKMEN'S  COMPENSATION  LAW  65 

Numerous  amendments  were  made  to  existing  compensation  laws 
during  1914  and  1915.  The  changes  made  in  some  of  the  laws  are  so 
extensive  that  it  amounted  to  about  an  adoption  of  a  new  law  in  its  en- 
tirety. ,  The  failure,  thus  far,  to  secure  uniformity  in  compensation  laws 
is  quite  noticeable.  The  Oklahoma  statute  restricts  its  application  to  cases 
of  non-fatal  acidents,  while  in  Wyoming,  all  accidents,  both  for  death  and 
disability,  are  in  the  form  of  lump  sum  settlements,  arbitrarily  fixed  by  the 
statute  without  regard  to  the  earning  capacity  of  the  injured  person. 
Practically  all  other  compensation  laws  favor  periodical  payments,  cal- 
culated according  to  the  wage  loss.  The  benefits  payable  under  the  Alaska 
statutes  are  similar  in  form  to  those  of  Wyoming,  except  for  temporary 
disability  for  which,  in  Alaska,  payment,  based  on  the  percentage  of  the 
wages,  are  allowed.  The  Alaska  statute  is  more  liberal  than  that  of  Wyom- 
ing, the  latter  allowing  a  maximum  of  $2,050  for  death  and  $3,000  for  per- 
manent disability,  while  in  Alaska  the  total  in  either  case  may  amount  to 
$6,000.  The  death  benefit  in  the  Colorado  statute  is  next  lowest  to  that 
of  Wyoming,  being  limited  to  a  maximum  of  $2,500.  The  Colorado  law  also 
prescribes  a  waiting  time  of  three  weeks  before  any  benefits  are  payable, 
in  both  these  respects  diverging  from  the  tendency  generally  observable 
to  allow  larger  benefits  and  to  reduce  the  waiting  time  to  less  than  two 
weeks.  Disability  benefits,  in  Colorado,  continue  until  death  if  the  dis- 
ability is  total  and  permanent. 

Official  boards  or  commissions  for  the  administration  of  compensation 
laws  continue  in  favor,  the  laws  of  Alaska  and  Wyoming  being  the  only 
new  laws  enacted  in  1915,  which  do  not  provide  for  a  method  of  adminis- 
tration. The  Louisiana  statute  is  administrated  by  the  courts.  The  indus- 
trial commission  of  Maine  is  limited  in  its  powers  to  those  relating  to  the 
administration  of  the  compensaton  law.  The  same  is  true  of  the  industrial 
commissions  of  Maryland,  Oklahoma  and  Vermont.  In  Hawaii,  county 
boards  with  restricted  functions  are  provided  for.  The  Pennsylvania  law 
creates  a  bureau  of  workmen's  compensation  in  the  State  Department  of 
Labor  which  furnishes  the  clerical  force  for  the  workman's  compensation 
board,  the  board  being  the  administration  body  proper,  for  the  hearing, 
investigation  and  determination  of  claims  under  the  law.  The  industrial 
commission  of  Colorado  is  charged,  not  only  with  the  adminstration  of  the 
compensation  law,  but  also  with  the  duties  of  factory  and  mine  inspection^ 
the  enforcement  of  women  and  child  labor  laws  and  safety  laws  generally. 
The  same  provisions  are  found  in  the  law  of  Indiana,  and  that  of  Montana. 
These  same  provisions  were  provided  for  in  earlier  laws  enacted  in  Califor- 
nia, Iowa  and  Texas.  The  compensation  laws  of  New  York,  Ohio  and  Wis- 
consin are  in  the  hands  of  industrial  commissions,  and  clothed  with  very 
broad  powers. 

The  following  states  have  elective  compensation  laws:  Alaska,  Colorado, 
Connecticut,  Illinois,  Indiana,  Iowa,  Kentucky,  Louisiana,  Maine,  Michigan, 
Minnesota,  Montana,  Nebraska,  New  Hampshire,  New  Jersey,  Pennsylvania, 
Rhode  Island,  Vermont  and  Wisconsin.  The  following  states  have  adopted 
compulsory  compensation  laws:  California,  Canal  Zone,  Hawaii,  North  Da- 
kota, New  York,  Oklahoma  and  the  Federal  government. 


66  STATE  DEPARTMENT  OF  LABOR 

The  following  states  have  adopted  compensation  laws  providing  for 
insurance,  and  elective  in  their  nature:  Missouri,  Nevada,  Oregon,  Texas, 
West  Virginia. 

The  following  states  have  adopted  compensation  laws  with  a  provision 
for  insurance  and  compulsory  in  their  nature:  Ohio,  Washington  and  Wyo- 
ming. 

Amending  Legislation 

Of  the  amendments  adopted  during  1914  and  1915  it  may  be  said  in 
general  that  they  relate  to  matters  of  administration  or  tend  toward  an 
extension  of  the  scope  of  the  acts  amended.  Exceptions  are  the  exclusion 
of  railroads  from  the  scope  of  the  law  in  Minnesota,  and  of  domestic  and 
argicultural  labor  in  Nevada.  In  Illinois  an  amendment  permits  the  use  of 
the  common-law  defenses  in  suits  against  farmers  and  stock  raisers.  An 
important  change  in  the  law  of  California  consists  of  the  substitution  of  the 
word  "injury"  for  the  word  "accident"  throughout,  the  evident  intent  being 
to  permit  the  inclusion  of  disabilities  not  resulting  from  single  acts  of  vio- 
lence, as  in  cases  of  industrial  disease.  An  act  of  the  California  legislature 
of  1915  that  may  be  mentioned  in  this  connection  is  one  that  provides  that 
officers  and  members  of  the  National  Guard  killed  or  injured  while  in  the 
service  of  the  State  shall  be  within  the  provisions  of  the  compensation  act. 

The  Connecticut  statute  provides  for  its  presumptive  acceptance  only 
in  cases  where  there  are  five  or  more  employes,  instead  of  in  cases  as 
formerly.  Casual  employes  and  outworkers  are  excluded  from  the  benefits 
of  the  act.  Waiting  time  is  reduced  from  two  weeks  to  ten  days, 
and  the  levy  of  the  sum  of  $750  for  the  expenses  of  the  State  compensation 
commissioners  where  there  are  no  dependents  of  a  deceased  workman  is  dis- 
continued. Other  amendments  relate  to  the  liability  of  third  persons  to 
whose  negligence  injury  is  due,  to  giving  of  notice  of  accidents  immediately 
instead  of  within  thirty  days,  to  the  readjustment  of  benefit  payments 
among  other  beneficiaries,  giving  power  to  a  commissioner  to  review  an 
award  on  his  own  initiative  as  well  as  at  the  instance  of  the  parties,  etc. 

In  Illinois,  the  minimum  death  benefit  was  increased  from  $1,500  to 
$1,650,  and  the  minimum  weekly  disability  payment  from  $5  to  $6.  A 
number  of  changes  relate  to  details  of  administration.  The  law  now  provides 
for  a  review  of  decisions  of  the  board  by  the  circuit  courts  instead  of  by 
the  supreme  court  only,  this  restriction  having  been  held  unconstitutional. 

The  Massachusetts  statute  was  amended  in  1914  and  1915,  the  most 
important  changes  being  the  increase  of  benefits,  the  basis  being  raised  from 
one-half  to  two-thirds  of  the  wages,  the  maximum  amount  for  total  dis- 
ability increased  from  $3,000  to  $4,000,  and  the  limit  of  term  of  payments 
for  partial  disability  extended  from  three  hundred  to  five  hundred  weeks. 
Other  changes  relate  to  questions  of  dependents,  the  discretionary  payments 
of  partial  lump-sum  awards  to  permanently  disabled  minors,  the  securing 
of  evidence  from  absentees  by  the  use  of  depositions  or  letters  rogatory, 
arbitration  of  disputes,  the  review  of  awards,  the  organization  of  the  State 
employes'  insurance  association,  etc.  The  directors  of  the  insurance  asso- 


WORKMEN'S  COMPENSATION  LAW  67 

ciation  are  to  be  elected  by  ballot  of  the  members  instead  of  being  ap- 
pointed by  the  governor,  as  originally  provided.  Branch  offices  of  the  indus- 
trial accident  board  in  not  more  than  four  cities  of  the  State  may  be  estab- 
lished, and  the  appointment  of  a  medical  adviser  is  authorized. 

Amendments  to  the  Michigan  law  authorize  the  appointment  of  two 
deputy  commissioners  to  assist  in  the* administration  of  the  act,  and  give 
the  State  commissioner  of  insurance  power  to  administer  medical  and  hos- 
pital benefits  through  the  State  accident  fund,  the  same  as  other  benefits. 
Part  5  of  the  act,  relating  to  the  administration  of  the  State  fund  by  the 
commissioner  of  insurance,  was  amended  in  several  respects,  one  change 
authorizing  the  levying  of  sufficient  premiums  or  assessments  on  the  em- 
ployers insured  to  meet  the  expenses  of  the  administration  of  the  fund. 
The  standing  appropriation  for  the  expenses  of  the  industrial  accident  board 
is  increased  from  $40,000  to  $45,000.  Other  laws  relating  to  adjusters  of 
claims  for  compensation  and  to  the  classification  of  risks  by  insurance  com- 
panies were  also  enacted. 

In  Minnesota,  all  common  carriers  by  steam  railroad  are  exempted 
from  the  operations  of  the  act,  instead  of  only  when  engaged  in  interstate 
commerce.  A  special  liability  law  was  enacted  for  railroads.  Provision 
was  made  for  the  payment  of  funeral  expenses  by  the  employer  in  cases 
of  fatal  accidents,  the  amount  not  to  exceed  $100.  The  weekly  benefits 
payable  were  changed  from  $6  minimum  and  $10  maximum  to  $6.50  mini- 
mum and  $11  maximum.  In  cases  of  permanent  total  disability  not  more 
than  $6.50  per  week  is  to  be  paid  for  one  hundred  and  fifty  weeks  after  the 
expiration  of  the  four  hundred  weeks  of  full  benefits  originally  provided 
for,  the  total  not  to  exceed  $5,000.  The  schedule  of  partial  disabilities  was 
amended,  adding  loss  of  hearing  and  a  number  of  combined  injuries  thereto. 
Other  amendments  relate  to  dependents,  the  distribution  of  death  benefits, 
charges  for  medical,  etc.,  aid,  the  limitations  of  actions,  the  duty  of  phy- 
sicians to  testify,  payment  to  non-resident  alien  beneficiaries,  the  insurance 
of  risks,  etc. 

Very  considerable  changes  were  made  in  the  statute  of  Nevada,  the 
scope  of  the  law  being  extended  by  disregarding  the  number  of  employes. 
The  waiting  time  is  reduced  from  two  weeks  to  one  week,  and  if  disability 
continues  for  three  weeks  or  longer,  payments  date  from  the  time  of  the 
injury.  Reasonable  medical  and  surgical  aid  is  to  be  furnished  by  the 
employer  for  a  period  of  not  more  than  four  months;  employes  may  be 
called  upon  to  contribute  $1  per  month  for  this  purpose.  The  schedule  of 
payments  to  dependents  was  revised,  the  maximum  amount  payable  was 
advanced  from  $5,000  to  $6,000.  Payments  to  non-resident  alien  benefi- 
ciaries are  especially  provided  for.  Election  to  accept  the  act  is  presumed 
in  the  absence  of  notice  of  rejection,  but  the  rejection  was  valid  for  but 
one  year  unless  renewed,  as  the  act  originally  provided;  by  amendment, 
rejections  once  made  continue  in  force  until  waiver  thereof,  which  action 
may  be  taken  at  any  time.  The  industrial  commission,  instead  of  consist- 
ing of  five  members,  three  of  whom  are  exofficio,  is  to  consist  of  three 
members,  appointed  by  a  board  made  up  of  the  governor,  the  attorney 
general,  and  the  inspector  of  mines.  Provision  is  made  for  the  reduction 


68  STATE  DEPARTMENT  OF  LABOR 

or  suspension  of  benefit  payments  to  injured  persons  who  refuse  reasonably 
essential  medical  or  surgical  treatment,  or  persist  in  insanitary  or  injurious 
practices  which  tend  to  imperil  or  retard  recovery.  Forfeiture  of  compen- 
sation is  to  follow  conviction  of  fraud  or  misrepresentation.  Other  amend- 
ments relate  to  the  maintenance,  investment,  etc.,  of  the  State  insurance 
fund,  injuries  outside  the  state,  etc. 

The  New  Jersey  statute  was  amended  in  1914  by  requiring  burial 
expenses  to  be  paid  in  all  cases,  instead  of  only  in  cases  where  no  other 
death  benefits  were  payable. 

The  law  of  New  York  was  amended  in  1914  so  as  to  include  employes 
on  public  works,  instead  of  excluding  them.  Other  amendments  relate  to 
pleadings  in  suits  where  the  employer  has  failed  to  guarantee  payments 
under  the  act,  to  penalties  for  failure  to  provide  such  guaranty,  to  the 
increase  of  a  child's  share  in  case  of  the  death  of  a  surviving  parent  during 
the  compensation  term,  and  to  the  consideration  of  public  pension  systems 
in  determining  benefits  payable.  The  legislature  of  1915  made  several 
amendments,  principal  among  them  being  the  permission  of  direct  agree- 
ments between  the  employer  and  employe,  subject,  however,  to  the  approval 
of  the  industrial  commission;  a  provision  for  advances  by  the  employer 
prior  to  any  final  agreement,  and  one  for  penalties  in  case  of  negligent 
or  intentional  default  in  compensation  payments.  The  administration  of 
the  act  now  devolves  upon  the  industrial  commission  of  the  State,  the 
workmen's  compensation  commission  having  been  abolished  and  its  func- 
tions conferred  upon  the  new  commission. 

The  Ohio  statute  was  amended  at  the  first  extra  session  of  1914  by 
defining  the  term  "willful  act"  as  used  in  the  law  to  mean  one  done  know- 
ingly and  purposely  with  the  direct  object  of  injuring  another — a  restricted 
definition  that  was  rejected  by  a  Federal  court  in  a  case  decided  prior  to 
the  enactment  of  this  amendment.  At  the  second  special  session  it  was 
provided  that  counties  might  omit  an  annual  tax  accounting  in  any  year 
following  a  report  by  the  industrial  commission  that  sufficient  funds  are 
in  hand.  Amendments  in  1915  relate  to  the  making  of  the  annual  reports 
by  the  commission. 

The  amendments  of  the  law  of  Oregon  consist  of  changes  in  the  section 
classifying  industries  and  establishing  premium  rates,  among  other  things 
fixing  the  employes'  contributions  at  one  cent  for  each  day  or  part  of  day 
worked,  instead  of  a  percentage  of  the  earnings  and  at  least  twenty-five 
cents  per  month;  provisions  for  adjusting  premium  rates  on  a  basis  of 
experience  and  for  determining  rates  for  employers  not  enumerated  in 
the  act  but  desiring  to  come  within  its  provisions.  Instead  of  permitting 
suits  for  damages  against  employers  failing  to  comply  with  safety  laws, 
the  offending  employers  are  to  be  prosecuted  by  the  industrial  accident 
commission  of  the  State. 

Besides  enacting  a  compensation  law  and  related  acts,  the  legislature 
of  Pennsylvania  affected  the  second  adoption  of  a  resolution  for  an 
amendment  to  the  State  constitution,  which,  if  adopted,  will  permit  the 
enactment  of  a  compulsory  compensation  law.  This  will  be  voted  upon  at 
the  regular  election  in  November  of  this  year. 


WORKMEN'S  COMPENSATION  LAW  69 

The  Rhode  Island  statute  is  amended  so  as  to  require  the  employer  to 
insure,  to  give  proof  of  financial  ability  to  make  payments  directly,  or  to 
give  satisfactory  security  or  bond  to  protect  payments  that  may  fall  due. 
Insurance  policies  must  inure  to  the  direct  benefit  of  claimants,  and 
beneficiaries  have  a  first  lien  on  any  sums  due  employers  from  the  insuring 
company.  Other  amendments  provide  for  the  reporting  of  accidents 
and  fix  the  method  of  ascertaining  average  weekly  wages,  etc. 

The  amendments  to  the  Washington  statute  were  not  so  extensive  as 
in  some  states,  the  premium  rate  for  iron  and  steel  construction  work  being 
changed  from  8  to  G1/^  per  cent,  the  provision  as  to  initial  or  preliminary 
payments  modified,  also  those  relating  to  readjustment  of  classes  and 
funds  and  to  defaulting  employers.  Physicians  who  have  examined  or 
treated  claimants  are  required  to  testify  as  to  such  examination  or  treat- 
ment in  proceedings  relating  to  claims,  and  persistence  by  claimants 
in  insanitary  and  injurious  practices  or  refusing  reasonably  essential 
medical  or  surgical  treatment  may  reduce  or  suspend  compensation  pay- 
ments. 

Changes  in  the  statute  of  West  Virginia  provide  for  a  compensation 
commissioner  to  administer  the  act  in  lieu  of  administration  by  the  pubilc 
service  commission  of  the  State  as  originally  arrranged  for.  The  costs 
of  administering  the  fund,  including  salaries,  fees  for  official  bonds,  etc., 
are  to  be  paid  out  of  the  fund  itself,  instead  of  being  met  by  the  State 
as  formerly.  Numerous  changes  in  detail  were  made,  and  the  minimum 
and  maximum  limits  of  weekly  benefits  were  raised  from  $3  to  $4  and  $6  to 
$8,  respectively.  Payments  for  disability  are  one-half  the  wages  for  various 
periods  according  to  degree  of  disability,  a  disability  of  85  per  cent  or 
above  calling  for  payments  for  life.  Death  benefits  are  specific  weekly 
or  monthly  sums  for  the  different  classes  of  dependents,  payments  to 
children  ceasing  when  they  attain  the  age  of  fifteen  years.  Medical  and 
surgical  costs  may  in  special  cases  be  increased  to  $300.  The  establishment 
of  a  surplus  fund  on  a  specified  basis  and  an  annual  readjustment  of 
premium  rates  (which  are  fixed  by  the  commissioner)  are  provided  for. 
Employers  may  act  as  self -insurers,  but  must  do  so  in  accordance  with  rules 
prescribed  by  the  compensation  commissioner  and  must  give  bond  for  the 
payment  of  benefits  that  may  fall  due.  Special  provision  is  made  for  the 
proof  of  claims  in  cases  of  hernia. 

The  Wisconsin  statute  was  amended  so  as  to  provide  for  dependent 
children  in  case  of  divorce  of  the  parents,  also  for  a  divorced  spouse  who 
has  not  remarried. 

The  Federal  Congress  extended  the  benefits  provided  by  earlier  laws 
for  railway  mail  and  sea-post  clerks,  so  as  to  include  city  and  rural  letter 
carriers  and  special-delivery  messengers;  while  in  executive  order  ex- 
tended the  application  of  the  act  of  May  30,  1908,  to  work  on  or  in  con- 
nection with  the  federal  railway  construction  in  Alaska. 

Mutual  Insurance  Companies 

The  insurance  of  the  employers'  risk  under  the  compensation  laws 
is  the  subject  of  various  forms  of  treatment,  as  appears  from  the  fact 


70  STATE  DEPARTMENT  OF  LABOR 

that  some  of  the  State  compensation  laws  are  in  themselves  insurance 
laws,  others  require  some  form  of  insurance  without  specifying  its  type, 
while  still  others  leave  the  matter  entirely  to  the  initiative  and  choice  of 
the  persons  interested.  Stock  companies  writing  employers'  liability  in- 
surance under  the  old  laws  naturally  extend  their  activities  to  cover  the 
obligations  imposed  by  the  compensation  legislation;  and  both  by  provision 
of  law  and  by  a  natural  growth  to  meet  new  conditions,  the  question  of 
the  formation  of  mutual  companies*  came  into  increased  prominence.  In 
some  states  the  compensation  acts  themselves  contain  provisions  covering 
this  subject,  while  special  acts  regulating  the  formation  of  such  companies 
have  been  passed  in  several  others,  and  while  they  are  not  strictly  parts 
of  the  compensation  laws,  they  are  so  closely  related  to  their  operations 
that  they  should  be  considered  in  a  discussion  of  compensation  legislation. 

Among  the  States  having  laws  on  this  subject  are  New  York,  Califor- 
nia, Colorado,  Illinois,  Indiana,  Maryland,  Massachusetts,  Michigan,  Minne- 
sota, Nebraska,  New  Hampshire,  Oklahoma,  Pennsylvania,  and  Texas. 

The  law  of  California  requires  five  incorporators  and  not  less  than 
five  nor  more  than  eleven  directors.  Business  may  be  begun  with  one 
hundred  subscribers  having  not  less  than  one  thousand  employes  in  the 
aggregate.  The  state  insurance  commissioner  may  limit  the  membership 
of  any  company  to  persons  engaged  in  the  same  general  character  of 
industry  or  residing  within  a  limited  part  of  the  state.  The  term  of  the 
corporation  may  not  exceed  fifty  years.  Premium  rates  may  not  be  less 
than  those  fixed  by  the  state  workmen's  compensation  rating  bureau. 

Under  the  Colorado  statute  fifteen  or  more  employers,  individual  or 
corporate,  may  associate  to  write  mutual  insurance.  Business  may  not  be 
begun  until  at  least  twenty  employers  with  not  less  than  2,500  employes 
apply  for  and  agree  in  writing  to  take  insurance*  and  until  such  applica- 
tions and  agreements  are  properly  authenticated  to  the  commissioner  of 
insurance.  In  special  cases,  where  the  hazard  is  comparatively  slight,  the 
number  of  employes  may  be  reduced  but  must  be  above  1,000.  Members 
have  one  vote  for  each  500  employes,  or  major  fraction  thereof,  but  no 
member  may  have  more  than  twenty  votes.  Directors  make  classifica- 
tions and  fix  premium  rates  and  may  allow  for  merit  rating;  they  may 
also  maintain  separate  funds  and  rates  for  diffierent  employments. 

In  Illinois,  not  less  than  twenty  persons  may  form  mutual  associations 
and  may  begin  business  with  the  simultaneous  issue  of  at  least  twenty 
policies  to  twenty  members  covering  the  same  kind  of  insurance  upon  not 
less  than  200  separate  risks.  No  maximum  single  risk  may  exceed  20  per 
cent  of  its  admitted  assets,  or  three  times  the  average  policy,  or  1  per  cent 
of  the  insurance  in  force,  whichever  is  the  greater.  Not  more  than  $25,000 
admitted  assets  is  required,  and  at  least  1,500  employes  must  be  covered, 
each  employe  being  considered  a  separate  risk.  Policyholders  must  be 
members  of  the  corporation  and  are  entitled  to  votes  in  accordance  with  the 
insurance  in  force,  the  number  of  policies  held,  or  the  amount  of  premium 
paid,  as  may  be  provided  by  the  by-laws. 

The  Indiana  statute  requires  at  least  twenty  incorporators  and  con- 
tains similar  provisions  as  to  initial  issue  of  policies,  maximum  single 


WORKMEN'S  COMPENSATION  LAW  71 

risks,  and  the  amount  of  admitted  assets  and  number  of  employes  as  appear 
in  the  Illinois  statute;  provisions  as  to  voting  are  also  similar. 

The  Maryland  statute  calls  for  at  least  nine  directors  and  twenty  sub- 
scribers, with  2,000  employes  as  a  minimum  for  the  commencement  of 
business.  Members  have  one  vote  for  each  500  employes  or  major  fraction 
thereof  but  not  more  than  ten  votes  in  all.  If  employes  contribute  to  the 
insurance  fund,  they  are  to  have  an  equal  voting  power  with  the  employers. 

In  Massachusetts  ten  or  more  persons  may  form  a  mutual  company, 
but  no  policy  may  be  issued  until  applications  for  insurance  in  an  amount 
not  less  than  $50,000  have  been  received,  or  applications  by  not  less  than 
100  employers  having  not  less  than  5,000  employes,  each  employer  obliga- 
ting himself  in  an  amount  not  less  than  five  times  his  cash  premium,  which 
may  be  called  upon  in  emergency,  or  they  may  give  bond  in  an  amount  of 
$100,000  to  meet  such  emergencies;  a  fund  of  $50,000  in  cash  deposited 
with  a  trustee  may  be  substituted  for  the  bond.  In  any  case  provision 
must  be  made  for  extraordinary  losses  caused  by  disasters.  In  general, 
corporations  of  this  class  are  subject  to  the  provisions  of  the  corporation 
laws  of  the  State. 

The  law  of  Michigan  requires  five  incorporators  and  provides  for  a 
discretionary  restriction  to  groups  of  employers  engaged  in  operations  of 
the  same  general  character.  At  least  5,000  employes  must  be  represented. 
The  term  of  the  corporation  may  not  exceed  thirty  years.  In  fixing  pre- 
mium rates  the  board  of  directors  may  take  into  account  the  safety  con- 
ditions of  the  plants  of  the  respective  subscribers.  The  law  of  1915  author- 
izes any  mutual  company,  organized  in  the  state  or  elsewhere,  to  write 
liability  insurance  if  possessed  of  net  cash  assets  in  an  amount  of  $500,000. 

In  Minnesota,  twenty  incorporators  are  required,  and  business  may  be 
begun  only  when  there  are  at  least  5,000  employes  covered.  A  proviso  as 
to  companies  insuring  creameries  and  cheese  factories  only  allows  them 
to  operate  if  there  are  300  employers  covered,  the  number  of  subscribers 
being  not  less  than  200.  This  act  requires  a  statement  in  each  policy  of  the 
maximum  contingent  liability  of  the  holder.  The  life  of  the  corporation 
is  limited  to  thirty  years. 

Twenty  employers  with  5,000  employes  may  incorporate  in  Nebraska, 
and  the  charter  may  be  perpetual.  Subscribers  may  cast  one  vote  for  each 
$100  premium  or  fraction  thereof  paid  during  the  preceding  calendar  year. 

The  New  Hampshire  law  authorizes  the  incorporation  of  twenty  or 
more  employers  with  not  less  than  5,000  employes.  The  general  corpora- 
tion law  applies  where  not  inconsistent  with  the  present  act.  One  vote 
is  allowed  for  each  $100  or  fraction  thereof  paid  in  premiums,  no  per- 
son to  be  allowed  more  than  twenty  votes.  Directors  may  inspect  plants, 
prescribe  safety  rules  and  regulations,  and  examine  books  and  *  pay 
rolls.  Merit  rating  is  permissible,  and  a  reserve  as  required  by  the  insur- 
ance commissioner  of  the  State  must  be  provided.  Groups  of  industries 
and  separate  funds  may  be  maintained,  but  all  funds  are  ultimately  avail- 
able to  meet  losses  when  necessary. 

The  Oklahoma  statute  is  identical  with  that  of  Illinois  in  the  points 
noted.  The  premium  rates  to  be  charged  by  mutual  companies,  as  by 


72  STATE  DEPARTMENT  OF  LABOR 

"every  insurance  company  granting  insurance  against  liability  of  em- 
ployers," are  subject  to  revision  by  the  state  insurance  board  if  found 
unreasonably  high  or  inadequate. 

The  Pennsylvania  law  requires  twenty  or  more  employers  with  not  less 
than  5,000  employes  who  have  accepted  the  elective  compensation  system 
of  the  state,  though  in  case  of  agricultural  employment,  not  less  than  200 
employers  and  500  employes  are  required.  The  same  provision  as  to  voting, 
inspection,  premiums,  groups,  funds,  and  ultimate  collective  liability  as 
appears  in  the  New  Hampshire  law  is  in  force  in  this  state.  A  surplus 
may  be  established  to  cover  catastrophe  hazards. 

The  Texas  statute  differs  considerably  from  other  laws  of  this  class 
and  authorizes  subscribers  "to  exchange  reciprocal  or  insurance  contracts 
with  each  other"  at  an  office  designated  in  the  application  for  such  author- 
ity. Not  less  than  seventy-five  employers  with  2,000  employes  must  apply 
and  must  place  on  deposit  at  least  $10,000  for  the  payment  of  losses,  and 
the  reserve  fund  must  be  retained  at  this  amount  as  a  minimum.  The 
insurance  contracts  must  amount  to  not  less  than  $500,000,  and  no 
employer  may  assume  a  risk  in  excess  of  10  per  cent  of  his  net  worth  as 
shown  by  a  reputable  commercial  rating  agency. 

Applicable  to  the  above  forms  of  insurance  companies,  and  to  all 
other  operations  in  the  field,  including  the  state  fund,  are  the  provisions 
of  a  statute  of  California  which  requires  every  such  company  to  file  with 
the  state  insurance  commissioner  its  .classification  of  risks  and  premium 
rates,  together  with  its  list  of  schedule  or  merit  rating.  After  hearings  the 
commissioner  is  to  fix  a  uniform  classification  of  risks  and  premium  rates, 
and  may  also  establish  a  uniform  system  of  merit  rating;  no  insurance  may 
be  carried  at  less  than  the  established  rates.  The  statistical  and  actuarial 
data  compiled  by  the  state's  industrial  accident  commission  and  compen- 
sation insurance  fund  are  to  be  at  the  disposal  of  the  insurance  commissioner 
for  the  purposes  above  set  forth. 

The  purpose  of  insuring  the  risk  of  work  accidents  from  the  employer's 
point  of  view  is  to  shift  the  cost  of  these  accidents,  and  to  save  the  em- 
ployer from  possible  bankruptcy  through  a  catastrophe  which  might  result 
in  wiping  out  his  industry  through  several  serious  accidents  causing  the 
payment  of  compensation  in  an  amount  beyond  the  capitalization  of  the 
industry.  The  Nebraska  compensation  law  provides  that  awards  under 
the  law,  without  limit  as  to  amount,  shall  have  the  same  preference 
against  the  assets  of  the  employer  as  unpaid  wages  for  labor  performed. 
From  the  employe's  point  of  view  insurance  of  the  risk  is  necessary  to 
protect  the  employe  against  the  possible  insolvency  of  the  employer,  espe- 
cially in  view  of  the  fact  that  many  of  the  compensation  payments  con- 
tinue out  over  a  period  of  many  weeks,  the  maximum  number  being  for 
permanent  total  disability,  which  continues  during  the  life  of  the  injured 
employe. 

The  Nebraska  law  needs  amending  in  such  manner  as  each  employer 
must  either  insure  his  risk  or  satisfy  some  competent  board  or  commission 
or  individual  that  he  is  solvent  and  that  he  will  continue  to  be  solvent  over 


WORKMEN'S  COMPENSATION  LAW  73 

the  period  of  time  for  which  he  may  be  subjected  to  the  payment  of  com- 
pensation to  an  injured  employe. 

The  Nebraska  law  provides  that  all  employers  of  five  or  more  are 
presumed  to  be  under  the  law  unless  an  election  to  the  contrary  has  been 
filed  with  the  state  insurance  commissioner.  To  require  an  employer  to  take 
out  insurance  or  qualify  as  to  solvency  before  he  could  come  under  the 
law  would  change  the  method  of  election,  in  that  the  employer  would  elect 
to  come  under  the  law  when  he  had  complied  with  the  requirements  as  to 
insuring  his  risk  or  had  his  solvency  passed  upon. 

The  Nebraska  law  was  made  an  elective  law  on  the  theory  advanced 
by  learned  counsel  that  under  the  Nebraska  constitution  one  could  not  be 
required  to  respond  in  damages  where  there  was  no  fault.  There  are  a 
number  of  able  members  of  the  bar  who  do  not  take  this  view  of  the  power 
conferred  upon  the  people  by  the  constitution.  The  safer  way,  in  order 
to  avoid  litigation  and  possible  adverse  rulings  by  the  supreme  court,  would 
be  to  amend  the  constitution,  plainly  empowering  the  people  with  author- 
ity to  adopt  a  compulsory  compensation  law.  Then  the  matter  of  requiring 
an  employer  to  insure  his  risk  and  protect  his  employes  against  insolvency 
could  be  made  a  part  of  the  compensation  law  and  not  affect  the  applica- 
tion of  the  law  to  the  larger  number  of  employers  of  the  state. 


74 


STATE  DEPARTMENT  OF  LABOR 


SAFETY 
FIRST 


Common  and  Other  Causes  of  Accidents 

One  delusion  is  passing  away,  in  the  campaign  to  prevent  industrial  accidents — 
that  every  industry  has  its  own  peculiar  set  of  accident  causes  and  that  practically 
all  the  accidents  result  from  those  causes.  One  industry  that  is  quite  different  from 
the  ordinary  run  of  manufacturing  plants  is  the  electric  light  and  power  industry. 
Yet  the  safety  engineer  of  an  electrical  company  wrote  recently  to  Safety  Engineer- 
ing : 

"One  of  the  distinctive  features  of  accident  statistics  in  central  stations  is  the 
relatively  low  rank  that  electricity  itself  holds  among  the  causes  of  accidents.  The 
returns  from  the  companies  generating  electricity  for  commercial  purposes  show 
that  approximately  15  per  cent  of  the  accidents  to  their  employes  are  due  purely  to 
electricity.  The  remaining  85  per  cent  are  due  to  causes  common  to  all  classes  of 
industries,  such  as  falls,  falling  objects  and  other  similar  sources  of  injury." 

If  85  per  cent  of  the  accidents  in  central  stations  are  due  to  "cause  common  to 
all  classes  of  industries,"  it  way  be  inferred  that  most  of  the  accidents  in  manufac- 
turing plants  are  due  to  common  causes.  Safety  work  means  taking  care  of  all 
common  causes  of  accidents — which  includes  carelessness  of  workmen,  elimination  of 
chance-takers  and  the  inculcation  of  the  safety  habit. 


WORKMEN'S  COMPENSATION  LAW  75 


A  Gallery  of  Injured  Employes 

The  following  pages  show  a  few  pictures  which  will  represent  differ- 
ent conditions  under  which  accidents  have  happened,  and  the  lessons  which 
may  be  learned  from  each  case. 

The  increasing  danger  to  life  and  limb  involved  in  the  pursuit  of  indus- 
trial occupations  has  become  so  great  that  the  necessity  of  doing  every- 
thing feasible  to  keep  it  within  the  narrowest  possible  limits  is  clearly 
evident.  We  are  living  in  a  constructive  era.  Articles  are  being  manu- 
factured in  greater  number  and  variety  than  ever  before  in  the  world's 
history.  More  and  more  machinery  is  constantly  being  used,  and  more 
and  more  persons  are  being  employed  in  factories,  mills,  and  workshops. 

The  toll  of  human  life  and  limb  being  exacted  by  modern  industry 
has  reached  such  startling  proportions  as  to  be  a  serious  menace  to  our 
national  welfare.  That  it  is  so  recognized  is  evidenced  by  the  increasing 
number  of  laws  made  to  protect  life  and  health,  and  the  marked  tendency 
shown  to  fix  the  legal  responsibility  for  accidents. 

Investigation  into  the  causes  of  this  drain  upon  our  national  vitality 
has  proved  conclusively  that  a  very  large  percentage  of  industrial  accidents 
can  be  avoided  by  the  adoption  of  proper  preventive  measures.  From  the 
nature  of  the  case,  it  is  plain  that,  although  the  employer  and  employe 
must  work  together  to  attain  the  desired  end  of  reducing  accidents  to  a 
minimum,  the  initiative  should  come  from  the  employer. 

Ignorance  can  never  be  entirely  overcome  in  many  instances,  and  it  is 
certainly  not  the  duty  of  the  employer  to  undertake  the  general  education 
of  his  employes.  He  can  do  much,  however,  to  prevent  ignorance  from 
contributing  to  the  causing  of  accidents  in  his  plants.  He  can  see  to  it 
that  no  man  is  allowed  to  handle  or  work  about  any  machinery  unless  he  is 
qualified  to  do  so.  He  can  prevent  a  workman  familiar  with  one  job,  and 
specially  trained,  for  it,  being  allowed  to  undertake  other  work  in  which  his 
ignorance  is  apt  to  cause  injury  to  himself,  if  not  to  others.  He  can  exer- 
cise discrimination  in  the  assignment  of  work,  so  as  to  avoid  putting  a  man 
of  slow-moving  mind  and  heavy  body  on  a  job  for  which  quickness  of 
mental  action  and  physical  agility  are  necessary. 

He  can  formulate  rules  showing  how  work  should  be  done  to  assure 
the  largest  degree  of  safety  possible,  and  he  can  furnish  copies  of  these 
rules  to  all  his  employes,  printed  in  as  many  languages  as  may  be  necessary 
to  convey  their  meaning  to  all  concerned.  He  can  also  make  prominent 
display  of  caution  signs  warning  his  men  what  not  to  do  in  order  to  avoid 
danger.  It  is  astonishing  how  ignorant  many  workmen  are,  not  only  of 
mechanical  arrangements  in  use  in  factories,  but  of  palpably  dangerous 
general  conditions  and  the  necessity  of  exercising  ordinary  care  to  avoid 
being  hurt.  It  is  equally  astonishing  how  large  a  part  native  curiosity 
plays  in  the  causing  of  accidents. 


76 


STATE  DEPARTMENT  OF  LABOR 


Arm  Caught  in  Gear 


This  inexperienced  workman  was 
injured  while  removing  a  lap  of  waste 
from  around  the  shaft  under  the  head 
of  a  doubler  by  reason  of  getting 
his  arm  caught  in  a  gear. 

As  a  result  of  the  accident,  he 
suffered  two  fractures  of  the  right 
arm,  a  severe  crushing  of  the  elbow, 
and  multiple  bruises  and  lacerations 
of  the  arm. 

This  type  of  injury  illustrates  the 
importance  of  thoroughly  guarding 
gears,  and  also  the  importance  of  in- 
structing inexperienced  and  ignorant 
employes  of  the  dangers  to  be  avoided 
in  working  around  machinery.  The 
injury  is  such  that  this  man  is  pre- 
vented from  ever  advancing  to  any 
considerable  extent,  and  if  the  em- 
ployer should  in  the  future  be  unable 
to  keep  him  employed  he  is  severely  handicapped  in  finding  work  which  he 
can  do. 

The  Work  of  a  Circular  Saw 

This  employe,  a  boy  of  nineteen  years,  worked  as  a  sawyer  in  a  por- 


table sawmill  owned  by  his  father. 


While  standing  on  a  wooden  platform, 
sawing  dry  pine  logs  with  a  52-inch 
circular  saw,  he  placed  his  right  hand 
against  the  smooth  surface  of  the 
saw  to  see  whether  or  not  it  was 
overheated.  His  hand  was  drawn  in 
between  the  side  of  the  saw  and  a 
board  on  top  of  the  saw-frame,  and 
held  fast.  In  an  effort  to  release  his 
hand  he  slipped  to  the  floor  of  the 
platform,  and  fell  upon  the  revolv- 
ing saw. 

The  installation  of  practical 
safety  devices  is  the  only  efficient 
method  of  lessening  the  injuries  in- 
cidental to  this  kind  of  employment. 
The  use  of  rubber  mats  or  strips, 
which  are  safeguards  against  slipping 
upon  floors  or  platforms,  might  have 
saved  this  employe  from  serious  in- 
jury. 


WORKMEN'S  COMPENSATION  LAW 


77 


Building  Wrecker  Injured 


While  lighting  gasoline  torches 
with  matches  instead  of  tapers  the 
gasoline-soaked  cotton  gloves  which 
this  employe  wore  became  ignited,  and 
he  suffered  severe  burns  of  both  hands 
and  arms.  An  operation  for  the 
grafting  of  new  skin  and  two  opera- 
tions for  the  purpose  of  loosening  the 
skin  on  the  right  thumb  for  the  pur- 
pose of  getting  better  flexion,  kept 
him  in  the  hospital  for  a  period  of 
eight  weeks. 

The  use  of  a  long  wax  taper 
might  have  enabled  this  employe  to 
be  out  of  the  range  of  the  flames  and 
thus  prevented  the  injury. 


Severe  Electrical  Burns 


This  employe,  a  carpenter,  was  en- 
gaged in  making  measurments  on  tem- 
porary partitions  when  the  rule  which 
he  held  in  his  hand  came  in  contact 
with  high  voltage  electric  wire  cables, 
his  head  at  the  same  time  brushing 
against  an  iron  beam,  making  a 
ground  for  the  current.  Injuries  re- 
sulted which  necessitated  the  amputa- 
tion of  his  hand  above  the  wrist,  and 
:he  insertion  of  a  silver  plate  in  his 
jkull. 

Proper  signals — "Danger,"  "Don't 
touch,"  etc. — at  the  point  of  danger 
would  have  warned  the  workman  of 
danger,  and  in  all  probability  have 
prevented  the  accident. 


78 


STATE  DEPARTMENT  OF  LABOR 


Lineman  Receives  Serious  Injury 

This  employe,  while  at  work  on 
a  pole  teeing  in  wire  slipped  striking 
the  left  side  of  his  face  against  a  pri- 
mary wire,  and  his  left  wrist  against 
another,  resulting  in  serious  burns 
which  disfigured  his  face  and  necessi- 
tated the  amputation  of  his  arm  be- 
low the  elbow.  He  was  working  at 
such  a  height  that  the  injury  might 
have  proved  fatal  had  he  not  been 
lowered  to  the  ground. 

This  injury  strikingly  illustrates 
the  need  of  a  lineman's  shield  in  ev- 
ery case  where  contact  with  live  wires 
is  likely,  and  the  necessity  of  wear- 
ing rubber  gloves  which  extend  over 
the  wrists  of  the  workman.  When- 
ever the  nature  of  the  lineman's  work 
will  permit,  rubbers  should  also  be 
worn.  By  strict  adherence  to  these 
precautions  many  similar  injuries  could  be  avoided. 


Inexperienced  Foreigner  Receives  Serious  Injury 


This  employe,  an  inexperienced 
foreigner,  was  picking  cotton  from 
back  of  lap,  while  the  machine  was  in 
motion.  His  fingers  were  caught  under- 
neath, between  the  lap  and  the  calen- 
der roll,  the  result,  as  shown  in  the 
illustration,  being  substantially  the 
loss  of  the  use  of  the  hand.  He  was 
employed  as  a  double-tender  in  a  yarn 
mill,  and  received  a  weekly  wage  of 
$6.35.  Injuries  under  such  circum- 
stances, generally  due  to  the  inexper- 
ience and  lack  of  knowledge  in  the  use 
and  operation  of  machinery,  occur  fre- 
quently. Instructions,  when  given, 
should  be  fully  and  thoroughly  under- 
stood by  the  operator.  "Things  not 
to  do"  should  be  pointed  out,  and  rigid 
discipline  enforced. 


WORKMEN'S  COMPENSATION  LAW 


79 


Hand  Caught  in  Machine 


While  engaged  at  his  regular  em- 
ployment as  a  power-shear  operator, 
this  employe  neglected  to  '  use  the 
metal  strip  or  templet  provided.  His 
fingers  were  caught  under  the  des- 
cending blade  of  the  machine  and  were 
severed  as  shown. 

This  injury  indicates  the  impor- 
tance of  safeguarding  machinery  and 
placing  the  safety-control  device  with- 
in easy  reach  of  the  operator.  Many 
effective  appliances  may  be  devised  to 
protect  employes  from  this  type  of 
machinery.  In  connection  with  this 
injury  the  point  is  also  illustrated  that 
not  only  should  safeguards  be  pro- 
vided, but  employes  should  be  edu- 
cated and  compelled  to  use  the  guards. 


Falls  From  Ladders 


Falls  from  ladders  cause  many 
serious  accidents.  Material  should 
never  be  carried  in  the  hands  while 
going  up  or  down  a  ladder.  Place 
the  ladder  so  it  will  not  slip.  If  nec- 
essary have  someone  hold  the  ladder. 
Examine  the  ladder  thoroughly  before 
using.  Don't  use  it  if  it  isn't  per- 
fectly safe.  Don't  lean  ladders  against 
windows  or  any  other  insecure  sup- 
port. Don't  walk  or  work  under 
ladders.  Should  this  man  fall,  it 
would  be  hard  to  convince  him  that  it 
wasn't  due  due  to  his  usual  "bum 
luck."  Do  not  go  up  or  down  a  ladder 
without  fre  e  use  of  both  hands.  Use 
a  rope  to  carry  material. 


80 


STATE  DEPARTMENT  OF  LABOR 


Carrying  the  Injured 

In  using  a  stretcher  shoulder  straps  should  rest  evenly  over  the 
shoulders  behind  the  collar.  Bearers  should  not  keep  step  so  as  to  prevent 
motion  of  stretcher.  Raise  and  lower  stretcher  gently.  Extra  man  to  open 
and  close  doors  and  remove  obstacles. 

Methods  suggested  for  use  when  no  stretcher  is  available: 

1.  Form  chair  by  grasping  wrists. 

2.  Similar  method  with  arm  forming  a  support  for  injured  employe's 
back. 

3.  How  the  injured  employe  may  be  carried,  with  a  degree  of  comfort 
and  ease. 


WORKMEN'S  COMPENSATION  LAW 


81 


1 First  Aid"  Suggestions 


By  James  D.  Case,  M.  D.,  State  Health  Inspector 

A  few  words  concerning  first  aid  and  necessary  dressings  is  fitting. 
There  are  many  injuries  that  entail  danger  to  the  injured  party  or  termin- 
ate in  permanent  disabilities  because  the  necessary  first  aid  equipment  is 
not  at  hand  or,  if  so,  no  one  present  sufficiently  capable  of  rendering  first 
aid  to  the  injured.  "Safety  First"  is  always  pertinent. 


/ 

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I 


Method  of  applying  splints 
in  case  of  fracture  to  upper 
arm.  The  splints  are  padded 
with  cotton,  and  are  then 
held  in  place  by  bandages  as 
shown.  A  sling  is  impro- 
vised for  holding  the  in- 
jured's  wrist  in  comfortable 
position.  A  fracture  is  the 
same  as  a  broken  bone.  Get 
a  surgeon.  Don't  move  the 
patient  unless  you  have  to. 
In  any  event  first  put  on  a 
temporary  splint.  Ends  of  a 
broken  bone  are  sharp  and 
if  the  ends  are  moved  there 
is  danger  of  cutting  blood 
vessels,  or  even  the  skin.  If 
end  of  bone  sticks  through 
skin  cover  wound  with  gauze 
and  wait  for  surgeon. 


It  is  also  important  to  remember  that  a  mere  knowledge  of  first  aid, 
invaluable  as  it  is,  does  not  in  any  way  replace  the  need  of  a  competent 
physician.  The  laity  is  not  supposed  to  be  able  to  foretell  the  seriousness 
or  ultimate  result  of  accidents  that  may  occur.  Do  not  hesitate  to  summon 
a  capable  physician  in  any  and  all  cases  that  may  prove  to  be  of  a  serious 


82 


STATE  DEPARTMENT  OF  LABOR 


nature.     It  is  better  to  be  temporarily  criticised  for  over-precaution  than 

to  be  forever  blamed  for  obvious  neglect. 

The  following  suggestions,  we  believe,  are  worthy  of  consideration: 

1.     Every  industry  where  persons  are  employed  and  subject  to  injury 


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should  carry  a  few  first  aid  articles,  kept  in  a  clean  dust-proof  box. 
a  small  box,  the  following  supplies  are  suggested: 

a.  Small  glass  or  rubber  stoppered  bottle  of  tincture  of  iodine. 

b.  Small  bottle  of  spirits  of  ammonia. 

c.  A  few  one-yard  packages  of  plain  sterile  gauze. 


For 


WORKMEN'S  COMPENSATION  LAW 


83 


d.  Assorted  roller  gauze  bandages,  one  to  two-inch  widths  and  five 
yards  long. 

e.  A  few  muslin  roller  bandages  for  tourniquets,  etc. 

f.  Spool  of  adhesive  plaster,  one-inch  width. 

g.  Bottle  of  10  per  cent  argyrol  solution  and  dropper  for  instilling 
into  the  eye  after  removal  of  a  foreign  body. 


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There  are  four  chief  things  to  do  in  case  of  injury:  First,  check  hem- 
orrhage; second,  apply  sterile  dressing  and  bandage  to  wound;  third,  put 
patient  at  rest;  fourth,  call  a  physician. 


84 


STATE  DEPARTMENT  OF  LABOR 


If  hemorrhage  is  from  a  limb,  it  may  be  checked  with  a  tourniquet 
made  by  tieing  loosely  a  piece  of  muslin  bandage  above  the  injury  and 
then  inserting  a  stick  through  the  loop  and  twisting  the  bandage,  using 
only  sufficient  pressure  to  check  the  bleeding.  If  the  bleeding  is  from  the 
body,  place  over  the  wound  a  heavy  pad  of  sterile  gauze  and  bandage 
tightly.  Never  attempt  to  check  bleeding  by  the  application  of  soot,  chew- 
ing tobacco,  flour,  etc.  All  dressings  should  be  taken  from  a  new  sterile 


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package,  otherwise  germs  will  be  carried  to  the  wound  and  infection  (blood 
poison)  result,  which  may  even  prove  fatal.  Never  touch  a  wound  with 
dirty  fingers  and  do  not  wash  a  wound — the  water  is  not  germ  free. 


WORKMEN'S  COMPENSATION  LAW 


85 


Fractures — Straighten  with  as  little  manipulation  as  possible  and  hold 
the  broken  limb  in  that  position  with  some  sort  of  splint,  having  the  limb 
in  the  position  most  comfortable  to  the  injured  party.  If  it  is  a  broken 
arm,  place  the  forearm  across  the  chest  and  bandage  the  whole  arm  tightly 
to  the  body.  If  a  leg,  pad  two  sticks  by  wrapping  them  in  cloth  and  bind 
one  on  either  side  of  the  leg  to  act  as  splints  and  then  tie  the  broken  leg 
to  the  good  one — this  gives  additional  splint  to  the  leg  and  comfort  to  the 
patient.  In  all  such  cases,  summon  a  physician.  If  the  limb  is  wounded 
or  a  bone  protrudes,  cover  the  wound  with  sterile  dressing.  Never  put 
any  dirty  object  over  a  wound. 

Foreign  Bodies  in  the  Eye — These  should  be  carefully  removed;  do  not 
rub  the  eye,  for  if  the  cornea  is  injured  an  ulcer  is  likely  to  result,  with  a 
partial  or  even  complete  loss  of  vision.  After  removing  the  foreign  body, 


Method  of  turning  up 
upper  lid  of  eye  to  search  for 
or  to  remove  particle  from 
inner  surface  of  lid.  First 
grasp  eye  lashes  of  upper  lid 
and  pull  downward  and  for- 
ward. Place  handle  of  pen- 
holder or  similar  object 
across  outer  surface  of  lid 
and  turn  lid  up  over  pen- 
holder. If  the  substance  can 
not  be  easily  removed  go  to 
a  doctor  immediately.  Don't 
let  anyone  use  an  instrument 
save  the  surgeon.  Otherwise 
there  may  be  blindness  in- 
duced by  infection. 


put  a  few  drops  of  10  per  cent  argyrol  solution  in  the  eye  to  prevent  in- 
fection. If  the  particle  is  not  loose  in  the  eye,  send  the  party  to  a  doctor. 
Electric  Shock — If  the  party  is  still  in  contact  with  the  live  wire,  don't 
grip  hold  of  him  to  pull  him  free,  for  the  current  in  that  case  would  also 
shock  the  rescuing  party.  Pick  up  a  board  or  long  stick  (wood  does  not 
conduct  electricity)  and  shove  and  hold  his  body  away  from  the  wire.  Per- 
form artificial  respiration  unceasingly  and,  if  the  party  can  swallow,  give 


86  STATE  DEPARTMENT  OF  LABOR 

stimulants.  In  all  cases  of  electric  shock,  secure  the  services  of  a  capable 
physician  as  early  as  possible. 

To  Perform  Artificial  Respiration — Place  the  patient  on  his  back  with 
shoulders  slightly  elevated  by  a  folded  coat.  Grasp  his  tongue,  using  a 
handkerchief  to  keep  it  from  slipping  from  the  grasp  and  pull  it  forward 
after  wiping  mucus  from  the  mouth  and  nose.  The  tongue  should  be 
held  forward  by  an  assistant  or  by  forcing  a  pencil  behind  the  last  teeth 
and  over  the  tongue;  kneel  behind  the  patient's  head,  facing  his  feet;  grasp 
his  forearms  just  below  the  elbows  and  press  them  forcefully  against  the 
sides  of  his  chest  to  expel  the  air  from  his  lungs;  then  draw  the  arm' 
upward  and  backward,  extending  his  body,  thus  allowing  the  chest  to  ex- 
pand and  the  air  to  enter.  Do  this  about  fifteen  times  per  minute  until 
respirations  become  voluntary  or  life  is  proven  extinct.  Usually  the  effort 
is  continued  for  at  least  an  hour.  Ammonia  held  to  the  nose  and  slapping 
the  body  alternately  with  towels  wrung  out  of  hot  and  cold  water  may  aid. 

Fainting — Fainting  is  due  to  a  lack  of  blood  supply  to  the  brain.  In 
treating  a  patient  who  has  fainted,  lay  him  on  his  back  on  the  floor,  or 
if  possible,  have  the  head  a  little  lower  than  the  body.  Sprinkle  cold  water 
over  the  face  and,  if  necessary,  put  some  spirits  of  ammonia  on  a  handker- 
chief and  hold  to  his  nose.  This  is  usually  all  that  is  necessary. 

Drowning — Remove  water  from  lungs  by  placing  the  party  face  down- 
ward with  a  coat  folded  and  placed  under  his  chest.  Get  astride  his  body 
and  press  on  the  back  to  force  out  the  water;  put  your  hands  under  the 
abdomen  and  lift  up  the  body  with  the  head  hanging  down  so  the  water 
will  run  out;  then  apply  artificial  respiration  and  send  for  a  pulmotor, 
if  there  is  one  available.  Remove  the  wet  clothes  and  apply  hot  blankets 
to  the  body.  After  respiration  is  established,  put  the  patient  to  bed  and 
and  keep  him  wrapped  in  hot  blankets  with  hot  water  bottles  to  the  feet. 

Burns  and  Scalds — Here  the  greatest  element  to  combat  is  usually  pain. 
The  main  object  is  to  exclude  the  air,  thus  lessening  the  pain.  Immerse  the 
part  in  water,  cover  with  sterile  gauze,  then  apply  an  abundance  of  cotton 
and  bandage  snugly  to  exclude  the  air  and  send  the  workman  to  a  physician 
for  proper  medical  attention. 

Cuts,  Punctures  and  Scratches — The  surrounding  parts  should  be 
painted  with  tincture  of  iodine  and  a  sterile  dressing  bandaged  over  the 
injury.  Minor  injuries  such  as  produced  by  splinters,  scratches,  abrasions, 
etc.,  should  be  immediately  reported  to  the  foreman  who  should  paint  them 
with  iodine  and  apply  a  dressing.  Neglect  in  these  cases  is  often  the  cause 
of  serious  infection. 

Infections  (Blood  Poison) — Infection  frequently  is  the  result  of  unintel- 
ligent treatment  or  of  neglect.  Unboiled  water  is  as  potent  a  carrier  of 
germs  as  a  dirty  cloth  or  dirty  fingers.  Keep  everything  dirty  away  from 
wounds.  Nothing  should  be  used  except  sterile  dressings  from  the  first 
aid  box. 

"SAFETY  FIRST"  should  be  constantly  before  the  mind  and  should 
be  the  common  slogan  of  employer  and  employe.  Prevention  is  always 
better  than  any  sort  of  cure. 


WORKMEN'S  COMPENSATION  LAW  87 

A  few  don'ts  to  be  remembered 

Don't  use  anything  dirty  on  a  wound. 

Don't  try  to  wash  wounds,  pending  the  arrival  of  a  physician — the 
blood  from  within  is  cleaner  than  water  from  without. 

Don't  treat  a  foreign  body  in  the  eye  as  trivial — an  ulcer  may  cause 
loss  of  vision. 

Don't  treat  the  injured  party  roughly — you  may  not  know  the  severity 
of  his  injury. 

Don't  endeavor  to  do  more  than  you  know  to  be  right. 

Don't  hesitate  to  call  a  physician  when  in  doubt. 

Don't  fail  to  report  to  the  foreman  when  you  are  injured — a  delay 
may  mean  infection  and  also  misunderstanding. 


WORKMEN'S  COMPENSATION  LAW 


Commutation  of  Claims  and  Accidents 

Arizona — The  court  may  Order  the  amount  of  compensation  paid  in 
one  lump  sum. 

California — Commutation  of  the  entire  amount  of  compensation  may 
be  paid  by  the  commission  when  it  is  determined  to  be  for  the  best  interest 
of  either  party  or  all  future  payments  may  be  ordered  to  be  deposited  in  a 
savings  bank  or  trust  company. 

Connecticut — All  future  payments  may  be  commuted  in  a  single  lump 
sum  by  order  of  the  commissioner. 

Illinois — All  future  payments  may  be  commuted  to  a  lump  sum  by  order 
of  the  industrial  board.  Any  employer  may  be  relieved  of  future  liability 
by  depositing  the  value  of  future  payments  in  accordance  with  the  direc- 
tions of  the  industrial  board. 

Iowa — All  future  payments  may  be  commuted  in  a  lump  sum  pay- 
ment by  order  of  any  judge  in  the  county  in  which  the  accident  occurred. 

Kansas — Amount  of  all  future  payments  may  be  commuted  in  lump 
sum  in  death  cases  where  payments  have  been  continuing  for  not  less  than 
six  months.  All  future  payments  may  be  commuted  to  one  lump  sum  by 
agreement  of  the  parties  or  by  application  to  a  judge  of  the  district  court. 

Maryland — The  question  of  whether  or  not  the  amount  is  to  be  paid  in 
a  lump  sum  or  weekly  payments  depends  upon  the  original  contract  in 
relation  to  compensation  which  the  employer  is  authorized  to  make  under 
the  act. 

Massachusetts — Whenever  any  weekly  payment  has  been  continuing 
for  not  less  than  six  months  the  remainder  of  the  compensation  may,  in 
unusual  cases,  be  redeemed  by  the  payment  of  a  lump  sum  subject  to  the 
approval  of  the  industrial  board. 

Michigan — Whenever  any  weekly  payment  has  been  continuing  for  not 
less  than  six  months,  the  balance  of  the  compensation  may  be  redeemed 
by  payment  of  a  lump  sum  by  agreement  of  the  industrial  accident  board, 
and  in  certain  cases  the  board  may  direct  that  all  deferred  payments  may 
be  commuted  to  the  present  worth  thereof. 

Minnesota — Future  payments  may  be  commuted  to  a  lump  sum  by 
agreement  of  the  parties,  approved  by  the  court,  except  that  compensation 
due  for  death  or  permanent  total  disability  or  for  permanent  partial 
disability  resulting  from  the  loss  of  a  hand,  or  an  arm,  or  a  foot,  or  a  leg, 
or  an  eye,  can  be  commuted  only  with  the  consent  of  the  district  court. 
The  employer  may  deposit  the  entire  amount  due  with  the  trustee  and 
thereby  be  discharged  from  any  future  liability. 

Nebraska — All  future  payments  may  be  commuted  to  one  lump  sum 
by  agreement  of  parties,  except  compensation  due  for  death  and  permanent 


90  STATE  DEPARTMENT  OF  LABOR 

disability  which  may  be  commuted  only  with  the  consent  of  the  district 
court.  The  employer  may  pay  the  entire  amount  of  any  future  compensation 
by  payments  to  a  trustee  who  may  be  discharged  under  certain  circum- 
stances. 

Nevada — All  future  payments  may  be  commuted  to  a  lump  sum  by 
order  of  the  industrial  commission. 

New  Hampshire — The  court  may  grant  an  order  for  the  payment  of 
a  lump  sum  either  on  application  of 'the  workman  or  the  employer. 

New  Jersey — All  future  payments  may  be  commuted  by  an  order  of 
the  Court  of  Common  Pleas,  but  such  commutation  is  not  favored.  A  sum 
equal  to  future  payments  may  be  deposited  by  leave  of  court,  and  the 
employer  is  thereafter  relieved  of  liability. 

New  York — Future  payments  may  be  commuted  and  paid  into  the  state 
insurance  fund  for  the  benefit  of  employes  or  dependents. 

Ohio — The  commission,  under  special  circumstances  and  when  the  same 
is  deemed  advisable,  may  commute  periodical  benefits  to  one  or  more  lump 
sum  payments.  (While  the  above  provision  was  intended  originally  to 
apply  to  the  state  insurance  fund,  apparently  it  applies  to  payments  from 
employers  who  decide  to  carry  their  own  interests  as  well.) 

Oregon — Where  a  beneficiary  resides  out  of  the  state  and  has  been  a 
non-resident  for  a  period  of  one  year,  the  commission  may  commute  all 
future  payments  to  a  lump  sum. 

Rhode  Island — If  payments  have  been  continuing  for  not  less  than  six 
months  either  party  may  apply  to  a  superior  court  for  an  order  commuting 
future  payments  to  a  lump  sum. 

Texas — In  cases  where  death  or  total  permanent  disability  results, 
the  future  payments  may  be  commuted  to  a  lump  sum,  subject  to  the 
approval  of  the  industrial  accident  board. 

Washington — In  case  of  non-resident  beneficiary,  the  department  may 
commute  the  amount  due  to  a  lump  sum.  The  department  may  in  any  case 
of  death  or  total  disability  commute  future  payments  to  a  lump  sum. 

West  Virginia — The  commission,  under  special  circumstances,  when  the 
same  is  deemed  advisable,  may  commute  periodical  payments  to  one  or 
more  lump  sum  payments. 

Wisconsin — At  any  time  after  six  months  have  elapsed  from  the  date 
of  injury,  the  industrial  commission  may  commute  future  payments  to  a 
lump  sum. 


WORKMEN'S  COMPENSATION  LAW  91 


Supreme  Court  Decisions 


The  supreme  court  of  Nebraska  has  handed  down  two  decisions  affect- 
ing the  Nebraska  workmen's  compensation  law.  The  first  decision  was  in 
the  case  of  Bailey  vs.  the  U.  S.  Fidelity  &  Guaranty  Co.  and  Apperson. 
In  this  case  the  dependents  and  the  employer  (Mr.  Apperson)  agreed  on  the 
amount  of  the  compensation  and  that  the  amount  be  paid  in  a  lump  sum. 
The  insurance  company  resisted  the  settlement.  Application  was  made  by 
the  dependents  to  the  district  court  for  an  order  directing  the  payment  of 
the  compensation  in  a  lump  sum,  and  offering  to  discount  the  total  amount 
of  compensation  agreed  upon  4  per  cent.  The  insurance  company  contended 
that  the  district  court  of  Lancaster  county  lacked  jurisdiction  to  compel 
these  weekly  payments  in  a  lump  sum. 

In  its  decision  sustaining  a  finding  for  the  plaintiff  by  the  Lancaster 
county  district  court  the  supreme  court  said: 

"Under  section  3681,  Revised  Statutes,  1913,  of  the  Workmen's  Com- 
pensation Act,  after  the  amount  of  compensation  payable  has  been  fixed, 
either  by  agreement  or  decision  of  the  court,  the  parties  may  agree  upon 
the  payment  of  a  lump  sum  in  lieu  of  the  periodical  payment.  There  is  no 
provision  in  the  statute  allowing  either  party  to  compel  the  employer  to 
pay,  or  the  workman  or  employe  to  receive  a  lump  sum  settlement." 

Section  3681  referred  to  by  the  supreme  court  provides  that  "the  amount 
of  compensation  payable  periodically  under  the  law  either  by  agreement 
of  the  parties,  by  decision  of  the  court,  may  be  commuted  to  one  or  more 
lump  sum  payments,  except  payments  for  death  or  permanent  disability. 
These  may  be  commuted  only  with  the  consent  of  the  district  court." 

The  intent  of  the  legislature  seems  to  be  clearly  expressed  in  the 
wording  of  Section  3681.  The  legislature  intended,  and  so  worded  the 
section,  and  the  intent  is  made  plain,  that  the  amount  of  compensation 
may  be  agreed  upon  between  the  parties,  or  by  the  decision  of  the  court, 
except  compensation  due  for  death  and  permanent  disability.  Certainly  if 
the  court  is  authorized  to  make  a  decision,  and  is  directed  to  make  a 
decision,  that  decision  must  be  in  response  to  an  application  to  the  court 
for  the  determination  of  a  controversy  between  the  parties.  Compensation 
due  for  death  and  permanent  disability  may  be  agreed  upon  between  the 
parties  but  such  agreement  in  fact  becomes  the  order  of  the  court.  'The 
use  of  the  word  "consent"  is  synonymous  with  the  word  "order"  or  "de- 
cision." Courts  do  not  give  "consent"  but  render  decisions  and  issue  orders. 

Section  3678  of  the  Revised  Statutes,  1913,  provides  that  in  all  cases 
except  a  claim  for  death  or  permanent  disability,  the  parties  may  mutually 
agree  upon  a  settlement;  or  they  may  mutually  agree  to  submit  the  con- 
troversy to  arbitration.  Failing  to  agree  on  either  of  these  methods  of 


92  STATE  DEPARTMENT  OF  LABOR 

arriving  at  a  settlement  either  party  may  submit  the  claim  both  as  to 
question  of  fact,  the  nature  and  effect  of  the  injury  and  the  amount  of 
compensation  therefor  to  the  district  court  of  the  county  which  would  have 
jurisdiction  of  a  civil  action  between  the  parties,  which  court  shall  have 
authority  to  hear  and  determine  the  causes  as  a  suit  in  equity,  and  enter 
final  judgment  therein,  determining  all  questions  of  law  and  fact. 

The  intent  of  the  legislature,  without  question,  was  to  direct  a  court 
of  competent  jurisdiction  to  render -a  decision  in  all  cases  where  the  settle- 
ment of  the  controversy  could  not  be  reached  by  mutual  agreement.  That 
being  the  intent  of  the  legislature,  either  party  must  be  within  their  rights 
in  making  application  to  a  court  of  competent  jurisdiction  to  render  such  a 
decision. 

If  the  interpretation  by  the  supreme  court  of  the  compensation  law  as  it 
is  written  is  to  be  the  rule  followed  then  there  is  grave  necessity  for  the 
amendment  of  the  compensation  law  in  that  particular.  If  a  district  court 
has  no  authority  to  order  a  settlement  upon  the  application  of  either  party, 
then  the  compensation  law  has  lengthened  rather  than  shortened  the  period 
of  time  which  an  employe  must  wait  settlement  for  a  personal  injury.  One 
of  the  purposes  of  the  compensation  law  was  to  get  immediate  relief  to  the 
injured  employe  and  his  family  and  his  dependents.  It  was  believed  that 
this  relief  should  be  given  when  needed,  and  that  there  should  not  be  a  two 
or  three  year  wait  upon  the  slow  grind  of  the  courts  for  a  decision.  Either 
an  injured  employe  or  his  dependents  are  entitled  to  compensation  for  a 
work  accident  or  else  he  or  they  are  not.  There  should  be  no  delay  or  there 
should  be  no  need  of  procedure  which  would  permit  of  a  delay  in  deter- 
mining the  compensation  which  shall  be  paid.  If  the  court  is  not  em- 
powered to  order  a  settlement  upon  the  application  of  either  party,  then 
we  are  to  revert  back  again,  not  to  the  long  drawn  out  method  of  litigation, 
but  a  more  unsatisfactory  method  of  long  drawn  out  negotiation.  The 
employe  having  suffered  an  injury  which  causes  him  to  lose  his  earning 
power  is  not  able  for  many  reasons  to  cope  with  the  ability  to  negotiate 
of  a  representative  of  an  insurance  company,  or  an  employer,  and  the  ulti- 
mate end  is  that  the  needs  of  the  injured  employe,  or  his  dependents, 
force  him  to  submit  to  a  settlement  not  in  accord  with  the  provisions  of  the 
law. 

The  Nebraska  Supreme  Court  in  the  case  of  James  Pierce  vs.  Boyer- 
VanKuran  Lumber  and  Coal  company  held  that  an  employe  who  was 
assaulted  by  a  fellow  workman,  could  not  recover  under  the  compensation 
law.  The  court  in  making  its  finding  ruled  as  follows: 

"An  accident  resulting  from  a  risk  reasonably  incident  to  the  employ- 
ment should  be  classed  as  arising  out  of  the  employment.  If  an  employe 
is  assaulted  by  a  fellow  workman,  whether  in  anger,  or  in  play,  an  injury 
so  sustained  does  not  arise  'out  of  the  employment/  and  the  employe  is  not 
entitled  to  compensation  therefor  under  the  employers'  liability  act." 

Section  3650,  Compiled  Statutes  for  1913,  reads  as  follows: 

"Section  3650.  If  both  employer  and  employe  become  subject  to  Part 
II  of  this  article,  both  shall  be  bound  by  the  schedule  of  compensation 
therein  provided  for,  which  compensation  shall  be  paid  in  every  case  of 


WORKMEN'S  COMPENSATION  LAW  93 

injury  or  death  caused  by  accident  arising  out  of  and  in  the  course  of 
employment,  except  accidents  caused  or  resulting  in  any  degree  from  wilful 
negligence  as  hereinafter  denned,  of  the  employe." 

Accidents  "arising  out  of  and  in  the  course  of  employment"  as  used 
in  Section  3650  is  quite  broad  and  susceptible  to  a  liberal  interpretation  as 
to  its  application.  An  injury  suffered  by  an  employe  through  an  attack 
by  a  fellow  servant  or  a  third  person,  whether  that  injury  be  as  a  result 
of  anger  or  play,  is  an  accident  arising  out  of  and  in  the  course  of  employ- 
ment. 

The  Supreme  Courts  of  other  states  have  ruled  as  follows: 

A  stenographer  v/as  feloniously  shot  and  killed  by  a  fellow  employe 
while  she  was  taking  shorthand  notes  of  dictation  from  her  employer.  Held 
that  she  was  killed  in  the  course  of  her  employment. —  (By  the  Ohio  Supreme 
Court.) 

An  employe  suspended  work  about  a  minute  before  time  to  quit  for 
lunch  and  proceeded  to  a  locker  on  the  premises  of  his  employer.  A  fellow 
employe,  who  was  in  the  locker  room,  rolled  up  a  pair  of  overalls  and,  in 
a  spirit  of  fun,  threw  them  at  him,  striking  him  in  the  face,  and  injuring 
his  eye.  Held  that  the  injury  was  sustained  while  in  the  course  of  employ- 
ment.— Ohio  Supreme  Court. 

An  accidental  injury  to  the  eyes  resulting  in  total  blindness,  produced 
a  condition  of  mind  upon  which  softening  of  the  brain  supervened,  causing 
death.  It  was  held  that  death  resulted  from  the  injury. — Mitchell  vs.  Grant 
&  Aldcroft  (1905)  7  Wisconsin  C.  C.  113. 

The  employe  received  a  personal  injury  by  reason  of  the  blistering  of 
his  hands  while  using  a  wheelbarrow;  the  wound  became  infected  and  two 
operations  were  performed;  because  of  the  injury,  operations  and  suffering 
the  previously  impaired  nervous  state  of  the  employe  was  accelerated  to 
the  point  of  insanity.  Held,  in  Whalen  vs.  United  States  Fidelity  and  Cas- 
ualty Co.,  (Ohio),  that  the  employe  was  entitled  to  compensation. 

The  employe  received  a  personal  injury  by  reason  of  the  spattering  of 
molten  lead  into  his  eye,  causing  total  loss  of  vision  in  the  injured  eye. 
Subsequently,  in  a  fit  of  insanity,  he  threw  himself  from  the  hospital  window 
and  received  injuries  which  caused  his  death.  Held,  in  Sponatski  vs.  Stan- 
dard Accident  Insurance  Company,  (California),  that  the  employe's  widow 
was  entitled  to  compensation. 

The  Board  held,  in  the  case  of  Malewicki  vs.  American  Mutual  Liability 
Insurance-  Company  (Massachusetts),  that  the  widow  of  an  employe  who 
received  a  fatal  injury  by  reason  of  the  voluntary  leaving  of  his  own 
work  to  assist  other  workmen  in  loading  a  heavy  heater  coil  on  a  flat  car 
was  entitled  to  compensation. 

The  Board  awarded  compensation  to  the  widow  of  a  street  sweeper  who 
received  a  fatal  injury  by  reason  of  the  running  away  of  a  horse,  it  being 
held  that  the  duties  of  his  occupation  especially  exposed  him  to  the  risks 
and  dangers  of  the  street.  This  was  the  case  of  Lowney  vs.  City  of  New 
Bedford,  (Massachusetts). 

The  employe,  in  the  case  of  O'Connor  vs.  London  Guarantee  and  Acci- 
dent Company,  Ltd.,  (Massachusetts),  had  been  instructed  not  to  deliver 


94  STATE  DEPARTMENT  OF  LABOR 

merchandise  to  a  certain  customer  because  of  his  delinquency  in  paying  his 
debts.  This  customer,  having  paid  his  bill,  received  the  goods  which  he 
had  ordered  and  had  occasion  to  pass  the  employe.  The  customer  called 
the  employe  a  name  and  struck  at  him  as  he  passed.  The  employe  parried 
the  blow,  and  the  customer  laid  hands  on  him,  the  former  resisting,  with 
the  result  that  he  received  a  personal  injury  which  caused  him  to  be  totally 
incapacitated  for  work.  Held,  that  the  injury  arose  out  of  and  in  the  course 
of  his  employment,  on  the  ground  that  the  risk  of  assault  by  an  irate 
customer,  to  whom  credit  had  been  refused,  was  a  peril  involved  in  his 
contract  of  service. 

An  employe  in  the  course  of  his  employment  may  do  any  act  of  a 
personal  nature  that  a  person  might  reasonably  do,  not  in  conflict  with 
specific  instructions  given,  without  passing  beyond  the  protection  of  the 
compensation  act.  Where  an  employe  goes  out  upon  a  porch  attached  to  the 
kitchen  where  he  is  employed  as  a  cook,  to  smoke  a  pipe,  and  in  returning 
to  the  kitchen  to  continue  his  work,  falls  down  the  basement  stairs  and 
suffers  a  fracture  of  the  wrist,  the  accident  arises  out  of  and  in  the  course 
of  the  employment. — G.  H.  Epsy  vs.  Mrs.  C.  C.  Grossman  (California). 

Court  Decisions — (Nebraska) 

Bailey  vs.  the  U.  S.  Fidelity  &  Guaranty  Co.  and  Apperson. 

1.  Under  Sec.  3681,  Rev.  St.  1913  of  the  Workmen's  Compensation  Act, 
after  the  amount  of  compensation  payable  has  been  fixed  either  by  agree- 
ment or  by  the  decision  of  a  court,  the  parties  may  agree  for  the  payment 
of  a  lump  sum  in  lieu  of  the  periodical  payments.     There  is  no  provision 
in  the  statute  allowing  either  party  to  compel  the  employer  to  pay,  or  the 
workman  or  dependent  to  receive,  a  lump  sum  satisfaction. 

2.  If  an  employer  and  the  party  to  whom  payment  is  to  be  made  make 
a  reasonable  agreement  in  good  faith  for  the  payment  of  a  lump  sum  not 
inconsistent  with  the  amount  of  the  periodical  payments  previously  deter- 
mined, the  agreement  will  bind  an  insurance  company,  which  has  assumed 
a  risk  under  section  3688,  revised  statutes  1913,  equally  with  the  employer. 
It  has  no  greater  rights   than  he  has  and   cannot  block  a  settlement  by 
objecting  to  payment  in  a  lump  sum  merely  because  it  was  not  consulted. 

3.  Commutation  is  a  departure  from  the  normal  method  of  payment 
and  is  to  be  allowed  only  when  it  clearly  appears  that  the  conditions  of  the 
beneficiaries  warrants  departure. 

4.  There  is  no  requirement  in  the  section  of  the  statute  which  applies 
to  residents  of  this  country  that  six  months  must  elapse  before  an  agree- 
ment for  a  lump  sum  payment  may  be  made,  or  the  consent  of  the  district 
court  be  procured  to  such  an  agreement. 

5.  A  lump  sum  settlement  made  by  taking  the  present  value  of  the 
periodical  payments  computed  at  5  per  cent,  simple  interest  is  not  erro- 
neous. 

James  Pierce  vs.  Boyer-VanKuran  Lumber  &  Coal  Co. 

1.     An  employe  is  not  entitled  to  compensation  for  injury  under  the 


WORKMEN'S  COMPENSATION  LAW  95 

employer's  liability  act,  (Law  1913,  ch.  198)  unless  the  accident  which 
caused  the  injury  happened  in  the  course  of  his  employment  and  arose  out 
of  his  employment. 

2.  An    accident    resulting    from    a    risk    reasonably    incident   to    the 
employment  should  be  considered  as  arising  out  of  the  employment. 

3.  If  an  employe  is  assaulted  by  a  fellow  workman,  whether  in  anger 
or  in  play,  an  injury  so  sustained  does  not  arise  "out  of  the  employment," 
and  the  employe  is  not  entitled  to  compensation  therefor  under  the  em- 
ployer's liability  act. 

4.  The  employers'  liability  act  allows  the  parties  interested  to  "settle 
all  matters  of  compensation  between  themselves."   (Revised  Statutes  1913, 
Section  3677.)     The  amount  of  compensation  when  not  agreed  upon  by  the 
parties  is  to  be  determined  by  the  district  court   (Sec.  3680)    and  except 
as  expressly  provided  in  the  act  must  be  payable  periodically.     (Sec.  3666.) 

5.  When  the  amount  of  compensation  in  periodical  payments  has  been 
determined  whether  by  agreement  of  the  parties  or  by  the  decision  of  the 
court,  it  "may  be  commuted  to  one  or  more  lump  sum  payments,  except 
compensation  due  for  death  and  permanent  disability."     (Sec.  3681.) 

6.  In    such    cases   no    other   or   different   authority   for   making   such 
commutation  is  provided  by  the  section;  it  still  depends  upon  the  agreement 
of  the  parties,  except  that  their  right  to  so  agree  in  the  specified  cases 
depends  upon  "the  consent  of  the  district  court." 

7.  In  general,  the  agreement  of  the  parties  will  authorize  such  com- 
mutation  of  payments.     In   cases   of  death   or   permanent  disability,  the 
consent  of  the  court  is  also  necessary.     If  the  district  court  upon  careful 
investigation  finds  that  special  circumstances  exist,  making  it  necessary  to 
commute  to  a  lump  sum  for  the  protection  of  the  workman  or  his  depen- 
dents, the  court  may  "consent"  to  such  agreement  by  the  parties. 

Court  Decisions — (Minnesota) 

Piece  Workers  vs.  Contractors. 

Stanley  Bashko  vs.  Virginia  &  Rainey  Lake  Co.  (St.  Louis  County), 
State  of  Minnesota  ex  rel  Virginia  &  Rainey  Lake  Co.  vs.  District  Court 
of  St.  Louis  County  et  al,  148  N.  W.  1082,  127  Minn.  519. 

A  series  of  cases  arose  in  which  the  employe  was  employed  in  cutting 
ties  for  a  lumber  company.  The  question  that  arose  in  these  cases  was 
whether  or  not  the  injured  was  a  piece  worker  or  a  contractor.  The 
case  which  decided  the  question  and  which  has  controlled  the  decisions  in 
the  other  cases  was  Bashko  vs.  Virginia  &  Rainy  Lake  Company.  The 
district  court  held  Bashko  to  be  a  piece  worker  and  awarded  compensation. 
The  court's  memorandum  citing  the  reasons  for  the  decision  was  as 
follows : 

Plaintiff  went  to  defendant's  logging  camp  in  the  ordinary  way  and 
asked  for  a  job.  He  was  put  to  work  on  defendant's  land  cutting  defend- 
ant's timber.  He  boarded  in  defendant's  camp.  He  used  defendant's 
tools  with  some  sort  of  understanding  as  to  payment  for  use  or  breakage 
of  same.  The  foreman  told  him  where  to  work  and  what  to  do.  No  term 


96  STATE  DEPARTMENT  OF  LABOR 

of  service  was  agreed  on  and  no  definite  quantity  of  timber  was  to  be 
cut.  So  far  one  cannot  say  whether  he  was  a  "monthly  man"  or  a 
"piece  worker."  When  he  wanted  some  money,  instead  of  asking  for  so 
many  days'  wages,  he  asked  for  a  count  of  the  ties  and  poles  and  posts 
which  he  had  cut.  Instead  of  the  foreman  counting  the  number  of  days 
and  issuing  a  time  check  accordingly,  he  counted  the  number  of  ties 
and  poles  and  posts  and  issued  a  time  check  accordingly.  In  either  case, 
the  foreman  deducted  the  board  bill  and  the  hospital  fee  and  the  "van" 
account.  Plaintiff  was  not  told  in  detail  how  he  should  do  his  work,  but 
he  was  probably  told  as  much  about  it  as  the  monthly  men  were  about 
their  work.  He  was  called  a  "piece  worker."  He  had  the  right  to  begin 
work  and  quit  work  each  day  when  he  pleased.  But  he  and  the  defendant 
both  profited  from  his  industry  if  he  worked  longer  each  day  than  the 
monthly  men,  and  both  lost  by  his  idleness  if  he  loafed  in  camp,  although 
it  affected  him  in  greater  degree.  If  he  loafed  in  camp  too  much,  the 
defendant  would  have  and  would  exercise  the  right  to  discharge  him. 
No  one  can  reasonably  say  he  was  an  independent  contractor  or  that  he 
was  an  employe.  He  undoubtedly  was  what  is,  in  the  common  acceptance 
of  the  term  in  these  parts,  known  as  a  "piece  worker."  The  effect  of  his 
employment  as  such  clearly  was  merely  a  method  of  fixing  compensation. 
Even  if  some  of  the  characteristics  of  his  particular  employment  were 
different  or  absent,  the  result  would  be  the  same.  No  one  hereabouts 
employs  men  by  the  day  or  month  to  make  ties,  poles  or  posts.  The  pen- 
alties following  inspection  of  such  products  are  too  expensive  to  permit 
men  to  make  them  on  any  other  basis  than  by  the  piece  subject  to  in- 
spection. 

Like  conditions  compel  the  same  conclusion  in  employments  other 
than  that  of  getting  out  timber  products.  Many  manufacturing  industries 
find  it  more  advantageous  both  to  employe  and  employer  to  fix  the  com- 
pensation on  a  "piece  work"  basis. 

The  same  result  should  be  reached  by  a  court  from  a  consideration 
of  the  purpose  and  intent  of  the  framers  of  the  compensation  act.  If  it 
is  a  good  law  when  the  wage  is  fixed  on  a  time  basis,  it  ought  to  be  a 
good  law  when  the  wage  is  fixed  on  a  piece  basis.  The  industry  therefore, 
should  carry  the  cost  of  taking  care  of  those  maimed  or  killed  in  doing 
its  work. 

Decisions  have  been  cited  under  other  compensation  acts  in  other 
jurisdictions.  They  are  not  important.  The  Minnesota  act  carries  its 
own  definitions,  either  expressly  or  impliedly,  sufficiently  to  cover  this 
case  and  others  like  it.  The  act  is  now  on  trial.  Nothing  in  the  way 
of  judicial  construction  or  legislation  should  be  allowed  to  hamper  the 
accomplishment  of  its  beneficient  purposes  or  bring  its  administration 
into  disrepute. 

The  supreme  court  affirmed  the  decision  of  the  district  court.  The 
gist  of  its  opinion  is  contained  in  the  -syllabus,  which  it  will  be  observed, 
determines  the  question  of  whether  or  not  a  given  workman  is  an  em- 
ploye or.  an  independent  contractor  by  the  test — "Has  the  employer  con- 
trol over  his  actions  or  not?" 


WORKMEN'S  COMPENSATION  LAW  97 

Syllabus. 

1.  The  test  for  determining  whether  one  person  is  the  employe  of 
another,    within    the    rule    making   the    employer    responsible    for    injuries 
resulting   from   the   negligence   of   his    employe,   is   whether    such    person 
possessed  the  power  to  control  the  other  in  respect  to  the  transaction  out 
of  which  the  injury  arose. 

2.  The  court  cannot  determine,  as  a  question  of  law,  that  the  rule 
of   respondent   superior   does   not    apply,   unless   the   evidence   shows   con- 
clusively that  the  alleged   employer  possessed  no   such   power  of  control. 

3.  Under   the    above   tests   the    evidence   was    ample   to    sustain   the 
finding  of  the  trial  court. 

4.  The  workmen's   compensation   act   is   remedial   in   its   nature   and 
must  be  given  a  liberal  construction  to  accomplish  the  purpose  intended. 
The  provisions  defining  when  the  relation  of  employer  and  employe  exists 
bring  within  the  act  all  cases  in  which  under  the  above  rule  such  relation 
is  found  to  exist. 

Casual  Employment. 

Frank  O'Connor  vs.  George  M.  Hanson,  Hennepin  County.  O'Connor 
was  an  employe  of  the  Chicago,  Milwaukee  &  St.  Paul  Railroad  as  a 
fireman,  and  on  the  evening  of  November  21,  1913,  it  was  agreed  between 
O'Connor  and  Hanson  that  the  said  O'Connor  should  work  for  Mr.  Hanson 
for  one  day,  to-wit,  the  22nd  day  of  November,  1913,  unless  said  employe 
should  be  during  said  day  recalled  to  his  employment  by  the  said  rail- 
road, in  which  case  it  was  agreed  that  the  said  employe  should  be  notified 
and  should  leave  his  work  under  the  said  Hanson,  and  it  was  agreed 
that  the  said  O'Connor  should  receive  for  his  work  as  teamster  for  Mr. 
Hanson  the  sum  of  $1.00.  While  engaged  as  teamster  on  November 
22nd  he  was  kicked  by  a  horse  and  his  right  leg  injured.  He  claimed 
compensation.  It  was  held  by  the  court  that  his  employment  was  but 
casual  and  that  he  could  not  claim  compensation  under  the  act. 

Edward  Allison  vs.  County  of  Ramsey,  Ramsey  County.  Edward 
Allison  was  employer  for  four  days  in  tacking  tar  paper  on  a  building 
at  the  Boys'  Detention  Home.  The  work  was  ordered  by  the  super- 
intendent to  be  discontinued  the  day  before  the  accident  complained  of 
happened,  but  the  plaintiff  remained  on  the  premises  and  claimed  to 
have  been  injured  by  falling  from  a  ladder  while  working.  The  court 
held  that  the  employment  was  "casual"  and  defined  "casual"  to  mean 
"occurring  at  irregular  intervals — occasional."  The  regular  work  there 
is  done  by  the  superintendent,  the  cook,  the  laundryman  and  the  farmer. 
This  man's  employment  was  in  every  sense  casual. 
Intra-state  Railroads. 

Vacil  Stachurski  vs.  Alger,  Smith  &  Company,  and  Duluth  &  North- 
ern Minnesota  Railway  Company,  St.  Louis  county.  In  this  case  the 
injured  was  in  the  employ  of  the  Duluth  &  Northern  Minnesota  Rail- 
way Company,  which  is  a  logging  road  owned  by  Alger,  Smith  Lumber 
Company,  and  was  employed  in  the  work  of  repairing  the  railway  com- 
pany's spur  track  and  while  engaged  in  the  blocking  of  rails  on  a  spur 


98  STATE  DEPARTMENT  OF  LABOR 

track  sustained  injuries  which  resulted  in  his  death  by  being  struck  by 
a  falling  tree.  The  deceased  left  surviving  him  a  wife  and  one  child 
in  Austria. 

The  court  held  that  the  railway  was  operating  under  the  provisions 
of  the  compensation  act  and  awarded  compensation  to  the  dependents. 

(The  1915  legislature  passed  a  law,  chapter  187,  G.  L.  1915,  placing 
intra-state,  as  well  as  interstate  railroads  outside  the  scope  of  the  com- 
pensation law.) 

Total  Dependency  Defined. 

Martin  and  Christina  Berg  vs.  Splady,  Albee  &  Smith  (Hennepin 
County),  State  ex  rel  Splady,  Albee  &  Smith  Company  vs.  District  Court 
of  Hennepin  County  et  al.,  151  N.  W.  Rep.  Advance  Sheets,  page  123, 
February  5,  1915.  Anton  Berg,  son  of  the  plaintiffs,  was  employed  by 
the  defendants  as  a  carpenter.  He  fell  on  April  16th  and  died  of  his 
injuries  on  April  25.  His  wages  were  $24.00  per  week,  and  out  of  that 
he  paid  to  his  parents  for  their  support,  $50.00  to  $60.00  a  month.  His 
father  and  mother  were  both  invalids  and  incapaciated  for  work,  the 
mother  having  been  confined  to  her  bed  for  six  years  previous  to  his 
death.  A  daughter  lived  at  home,  but  simply  paid  her  own  board  and 
other  expenses,  and  did  not  contribute  to  the  parents'  support.  Another 
daughter,  Mrs.  Ella  Prince,  lived  with  the  parents  and  was  paid  $4.00 
a  week  for  the  house  work  and  for  nursing  the  father  and  mother,  this 
sum  being  paid  out  of  the  moneys  contributed  to  their  support  by  Anton 
Berg.  Held:  That  the  parents  were  wholly  dependent,  that  medical  ex- 
penses of  $200.00  and  compensation  at  the  rate  of  $8.40  per  week  should 
be  awarded. 

The  case  was  appealed  to  the  supreme  court  upon  the  question  of 
whether  or  not  the  parents  were  wholly  dependent  as  held  by  the  district 
court.  The  supreme  court  said  on  this  point: 

"Section  8208,  G.  S.  1913,  in  subdivision  1,  2  and  3,  attempts  to  define 
those  who  shall  be  deemed  'wholly  dependent/  'actual  dependents/  and 
'partial  dependents.'  Subdivision  1  provides  that  the  wife  and  minor 
children  shall  be  presumed  to  be  'wholly  dependent.'  Subdivision  2  says 
that  husband,  mother,  father,  etc.,  who  were  'wholly  supported'  by  the 
workman  at  the  time  of  his  death  and  for  a  reasonable  period  prior  there- 
to, shall  be  considered  his  'actual  dependents.'  Subdivision  3  provides 
that  any  dependents  named  in  subdivision  2  who  regularly  derived  'part 
of  their  support'  from  the  wages  of  the  deceased  workman  shall  be 
considered  his  'partial  dependents.' 

Subdivision  12  provides  that  if  the  deceased  employe  leave  no  widow, 
children  or  husband,  but  does  leave  a  parent  or  parents  either  or  both 
of  whom  are  wholly  dependent  on  the  deceased,  there  shall  be  paid, 
if  one  parent,  25  per  cent  of  the  monthly  wages  of  deceased,  if  both 
parents,  35  per  cent  thereof.  Subdivision  15  provides  that  "partial  de- 
pendents shall  be  entitled  to  receive  only  that  proportion  of  the  benefits 
provided  for  actual  dependents  which  the  average  amount  of  wages  reg- 
ularly contributed  by  the  deceased  to  such  partial  dependent  at  and  for 


WORKMEN'S  COMPENSATION  LAW  99 

a  reasonable  time  immediately  prior  to  the  injury,  bore  to  the  total  wage 
of  the  deceased  during  the  same  time." 

The  facts  which  bear  upon  the  question  whether  plaintiffs  were 
"wholly  supported"  by  deceased,  "wholly  dependent"  upon  him,  or  whe'ther 
they  derived  but  '"part  of  their  support"  from  his  wages,  were  "partial 
dependents,"  are  undisputed,  and  are  as  follows:  "The  father  was  an 
invalid  and  since  December  1,  1913,  had  been  wholly  incapaciated  to 
contribute  in  any  measure  to  the  support  of  himself  or  the  members  of 
his  family;  the  mother  has  been  a  helpless  invalid  for  more  than  six 
years;  an  unmarried  daughter  made  her  home  with  plaintiffs  and  paid 
$4.00  per  week  for  her  board,  room,  etc.,  which  was  the  cost  of  these  ac- 
commodations; a  married  daughter  and  her  child  lived  with  plaintiffs 
from  August,  1913,  to  April  16,  1914;  during  this  time  she  did  all  the 
household  work,  and  cared  for  her  invalid  father  and  mother.  Until 
December  1,  1913,  she  received  $4.00  per  week  in  payment  of  her  services. 
Since  that  date  she  performed  them  gratuitously.  The  court  found  that 
the  reasonable  value  of  the  services  of  this  daughter  was  $4.00  per  week 
over  and  above  her  board  and  that  of  her  child." 

The  question  is  whether  these  gratuitous  services  of  the  daughter 
for  a  few  months  made  the  parents  only  "partially  dependent"  upon  the 
son's  support.  It  is  clear  that  the  only  money  the  parents  or  family 
had  for  their  support  came  from  the  son,  Anton.  He  was  the  real  head 
of  the  family,  the  bread  winner.  The  daughter's  services  had  been  rend- 
ered for  but  a  short  time,  and  may  well  be  considered  a  temporary  help. 
We  should  give  the  provisions  of  the  act  a  very  liberal  construction.  It 
is  rather  difficult  to  understand  on  what  theory  the  legislature  makes  its 
distinction  between  those  who  are  "wholly  dependent"  and  those  who  are 
but  partially  so.  The  criterion  should  be,  as  it  seems  to  us,  the  amount 
of  wages  that  the  workman  has  contributed  monthly  to  the  dependent, 
rather  than  whether  or  not  the  latter  had  received  some  measure  of  sup- 
port from  other  sources.  But  of  course  this  is  for  the  legislature  to 
determine.  It  may  certainly  be  argued  with  some  force  that  one  who 
owns  his  home,  or  for  whom  others  perform  friendly  services,  is  not, 
technically  speaking,  "wholly  dependent"  upon  the  cash  received  from  the 
wages  of  the  worker  of  the  family.  Nor  is  one  who  receives  help  from 
a  charitable  organization,  or  from  neighbors.  But  we  cannot  suppose 
that  the  legislature  intended  that  such  a  person  should  be  considered  only 
a  "partial  dependent."  Giving  the  act  a  reasonable  and  liberal  con- 
struction, our  conclusion  is  that  the  trial  court  was  justified  in  finding 
that  plaintiffs  were  wholly  dependent  upon  the  deceased  for  their  support. 
Arising  Out  of  the  Employment. 

Minnie  V.  Almquist  vs.  Nelson-Spellisey  Implement  Company,  Meeker 
County.  State  ex  rel  Nelson-Spellisey  Implement  Company  vs.  Meeker 
County,  Vol.  151  N."  Rep.,  p.  123  (Advanced  Sheets),  February  5,  1915. 
Affirmed. 

Minnie  V.  Almquist  vs.  Nelson-Spellisey  Implement  Company,  Meeker 
County.  This  company  in  conjunction  with  its  implement  business  wa.s 
operating  an  auto  livery  and  sometimes  carried  passengers  by  automobile 


100  STATE  DEPARTMENT  OF  LABOR 

for  hire.  Walter  V.  Almquist  worked  for  this  company  repairing  ma- 
chinery and  automobiles  and  sometimes  drove  automobiles  which  carried 
passengers  for  hire.  On  October  27,  1913,  he  drove  a  car  for  the  de- 
fen5ants  from  Litchfield  to  a  place  more  than  twenty  miles  distant,  and 
while  returning  to  Litchfield  at  night  was  killed  by  his  automobile  over- 
turning. The  defendants  claimed  that  his  death  was  due  to  his  voluntary 
intoxication.  The  findings  of  the  court  overthrew  this  contention  but 
found  that  he  had  been  reckless.  The  court  held  that  the  accident  "arose 
out  of  and  in  the  course  of  his  employment,"  and  awarded  compensation. 

The  supreme  court  in  sustaining  the  decision  of  the  district  court 
in  this  case  states: 

"We  find  evidence  tending  to  show  that  decedent  was  at  times  ad- 
dicted to  the  excessive  use  of  intoxicating  liquors.  That  he  drank  such 
liquors  on  the  day  in  question  prior  to  starting  on  the  particular  trip 
with  the  automobile,  and  also  during  the  time  thereof;  and  also  evidence 
that  he  was  not  a  habitual  drinker  and  was  not  intoxicated  on  this  oc- 
casion. In  this  state  of  the  record  we  are  limited  to  the  inquiry  whether 
the  evidence,  if  satisfactory  to  the  trial  court,  reasonably  tends  to  sup- 
port the  plaintiff's  contentions.  We  hold  that  it  does." 

Bettie  L.  Young  vs.  Employers'  Liability  Assurance  Corporation, 
Wabasha  County.  John  Young  was  employed  as  head  miller  by  the  Wa- 
basha  Roller  Mill  Company.  He  was  found  dead  on  the  ground  on  the 
outside  of  the  building  at  8:30  a.m.,  on  October  23,  1913.  He  fell  out  of 
a  fifth-story  window,  where  he  had  been  seated  while  examining  the  fire 
escape  or  observing  the  working  of  the  machinery  of  the  mill.  The  de- 
fendants admitted  that  the  accident  occurred  in  the  course  of  his  em- 
ployment but  denied  that  it  arose  out  of  his  employment.  The  court 
held  that  inasmuch  as  his  duties  took  him  to  any  part  of  the  mill  at  his 
own  discretion  and  the  accident  occurred  while  he  was  in  the  course 
of  his  duties,  it  arose  out  of  his  employment. 

Fred  Cook  vs.  Alger,  Smith  &  Company,  St.  Louis  County.  Fred 
Cook  was  hired  by  his  employer  on  December  12,  1913,  to  work  on  roads 
being  constructed  in  and  about  latter's  lumber  camps  in  Lake  county, 
Minnesota.  He  was  boarded  and  lodged  in  a  camp  constructed  and  oper- 
ated by  the  employer  in  the  vicinity  of  the  work  said  employe  was  engaged 
in  doing.  Among  the  buildings  were  a  sleeping  camp  and  an  eating  camp 
that  had  been  in  operation  for  several  weeks  prior  to  February  16,  1914, 
and  during  that  time  a  large  sheet  of  ice  was  formed  immediately  in 
front  of  the '  door  leading  from  the  sleeping  camp  to  the  eating  camp. 
While  "passing  from  the  sleeping  camp  to  the  eating  camp  to  get  his 
breakfast,  and  before  he  was  suitably  dressed  for  the  work  on  the  roads 
for  which  he  was  hired,  he  stepped  on  the  sheet  of  ice  aforesaid,  slipped 
and  fell  and  injured  the  deltoid  muscle  of  his  right  arm  and  shoulder. 
Such  injury  to  said  employe  was  caused  by  an  accident  arising  out  of 
and  in  the  course  of  his  employment."  Compensation  awarded. 
In  Course  of  Employment. 

George  Chuque  vs.  Mahoning  Ore  &  Steel  Company,  St.  Louis  county. 
Deceased  was  killed  while  riding  home  from  work  on  a  train  owned  by 


WORKMEN'S  COMPENSATION- LAW  -  101 

his  employers.  The  employes  had  been  forbidden  to  ride  on  the  train 
and  the  accident  occurred  after  he  had  left  his  work.  Held  that  it  was 
not  an  accident  "in  the  course  of  his  employment." 

Fred  Katzenmaier  vs.  John  Doeren,  Ramsey  County,  December  31, 
1914.  Judge  Catlin.  Employer  owns  a  cigar  factory  in  St.  Paul.  A  ce- 
ment sidewalk,  one  hundred  and  three  feet  long,  extends  from  the  street 
to  the  entrance  of  the  said  factory  building,  and  a  gravel  carriage  drive- 
way also  runs  from  the  street  to  the  factory  building.  This  sidewalk  and 
driveway  are  on  the  premises  of  the  employer  and  constitute  a  part  of  his 
property. 

On  the  morning  of  February  2,  1914,  the  plaintiff,  one  of  Doeren's 
employes,  fell  while  passing  along  the  said-  sidewalk  on  his  way  to 
his  work  in  the  factory.  The  facts  relative  to  the  injury  were  as  follows: 

For  a  couple  of  days  prior  to  the  morning  of  February  2  a  small 
pool  of  ice  had  formed  on  this  sidewalk.  On  the  morning  of  February 
2  and  before  7:30  a.m.,  there  was  a  light  snow  fall  covering  all  that 
section  of  the  city.  The  employer,  through  one  of  his  employes,  had 
started  to  remove  the  snow  and  at  7:30  a.m.  had  almost  reached  the 
point  where  the  ice  had  formed  and  would  have  had  the  walk  cleaned 
by  7:45  a.  m.,  the  hour  at  which  employes  were  supposed  to  begin  to  enter 
the  factory. 

The  plaintiff  came  to  work  at  7:30  a.m.  He  had  lost  the  use  of  his 
right  leg  from  his  hip  down  when  a  child  three  years  of  age,  and  three 
years  prior  to  receiving  the  injury  complained  of,  had  suffered  a  stroke 
of  paralysis  on  his  left  side  affecting  his  left  leg  and  foot  and  crippling 
him  so  that  he  could  not  stand  upright  without  crutches.  On  account 
of  his  physical  condition  the  plaintiff  had  fallen  at  numerous  times  in 
various  parts  of  the  city.  On  this  particular  morning  while  walking 
on  crutches  on  the  said  cement  sidewalk  leading  from  the  street  to  the 
factory  he  fell  and  fractured  his  left  leg  so  that  it  was  permamently 
disabled.  This  accident  occurred  before  he  reached  the  factory  building 
and  before  he  performed  any  services  or  work  for  his  employer. 

The  court  held  that  the  accident  did  not  occur  in  the  course  of  and 
arise  out  of  the  employment.  Commenting  on  its  decision  in  a  memor- 
andum the  court  states  as  follows: 

"'Several  cases,  sustaining  claims  of  employes  where  injuries  were 
incurred  under  somewhat  analogous  conditions,  do  not  warrant  the  court 
in  sustaining  the  claim  of  the  plaintiff  in  this  action,  because  of  the 
difference  in  the  phraseology  of  the  statutes  of  the  states  in  which  the 
decisions  were  rendered.  Comparison  of  the  Minnesota  act  with  that  of 
the  English  Workingmen's  Compensation  Law,  with  the  federal  law,  and 
with  the  similar  laws  enacted  by  various  states  in  the  Union,  shows  that 
the  right  of  employes  to  compensation  has  been  very  much  more  circum- 
scribed by  the  express  terms  of  our  act.  Under  the  Wisconsin  act,  by 
the  express  terms  of  the  statue  an  employe  is  entitled  to  compensation 
for  injury  sustained  on  his  employer's  premises  while  going  to  and  de- 
parting from  his  labor.  Other  acts  embrace  such  injuries  because  sus- 
tained while  doing  something  'incidental  to  the  work'  for  which  he  is 


102  STATE  DEPARTMENT  OF  LABOR 

employed.  Nearly  all  the  statutory  laws  of  this  character  provide  that 
the  injury  must  'arise  out  of  and  in  the  course  of  employment,'  as  does 
the  Minnesota  act.  But  our  statute  expressly  provides — as  no  other  act 
does — that  the  clause  'personal  injuries  arising  out  of  and  in  the  course 
of  employment'  shall  not  cover  'workmen  except  while  engaged  in,  on  or 
about  the  premises  where  their  services  are  being  performed  or  where 
their  service  requires  their  presence  as  a  part  of  such  service  at  the  time 
of  injury  and  during  the  hours  of  service  as  such  workmen.'  The  act 
is,  by  its  terms,  much  more  limited  than  any  other  statute  and  less 
humanitarian,  but  the  question  of  limitation  and  of  humanitarianism  and 
the  general  policy  of  the  law  are  questions  for  the  legislature  and  not  for 
the  court.  Neither  sympathy  for  the  plaintiff  in  his  pathetic  condition 
nor  wishes  that  the  law  were  broader  and  less  circumscribed  in  its  terms 
can  properly  move  the  court  to  give  to  the  language  of  the  act  a  meaning 
which  will  bring  the  unfortunate  plaintiff  within  its  terms  and  entitle 
him  to  compensation.  He  worked  for  the  defendant  and  was  on  his  prem- 
ises at  the  time  of  the  accident,  but  was  not  engaged  where  his  services 
was  being  performed  or  where  his  service  required  his  presence  as  a  part 
of  such  service  during  the  hours  of  service  as  such  workman. 

Accident  Defined. 

Charles  DeCook  vs.  Duluth  Brewing  &  Malting  Co.,  St.  Louis  county. 
State  of  Minnesota  ex  rel  Duluth  Brewing  &  Malting  Co.  vs.  District 
Court  of  St.  Louis  County  et  al.,  151  N.  W.  Rep.  912.  October  term,  1914. 

Conclusions  of  Facts  (District  Court). 

Charles  DeCook  was  in  the  employ  of  the  Duluth  Brewing  &  Malting 
Company  as  an  assistant  to  a  foreman  and  his  duty  consisted  in  making 
necessary  repairs  and  having  general  charge  of  the  repairs  of  its  brew- 
ing and  malting  plant  and  bottling  house. 

"On  said  April  9th,  while  said  employe  was  in  the  aforesaid  em- 
ployment— and  while  pursuant  to  and  in  the  regular  course  of  his  em- 
ployment and  occupation  he  was  so  engaged  in  shaping  and  fashioning 
into  a  key  for  light  protectors  in  said  plant  of  what  he  supposed  was 
an  empty  copper  cartridge,  the  same  exploded  with  terrific  force,  and 
as  the  direct  result  thereof  one  or  more  of  the  flying  pieces  was  hurled 
into  and  penetrated  his  right  eye,  whereby  he  lost  the  entire  sight  thereof; 
that  what  said  employe  supposed  was  an  empty  cartridge  was  in  fact 
an  unexploded  dynamite  cap  loaded  with  fulminating  explosive  of  high 
power. 

"That  said  accident  or  personal  injury  was  due  to  accident  within 
the  meaning  of  the  statute  in  such  case  made  and  provided  and  was  due 
to  an  unexpected  or  unforseen  event  which  happened  suddenly  and  violent- 
ly and  produced  at  the  time  injury  to  the  physical  structure  of  the  body 
of  said  employe. 

"That  said  employe  received  said  injury  while  engaged  in,  on  and 
about  the  premises  where  his  said  services  were  being  performed  at  the 
time  of  said  injury,  and  during  the  hours  of  said  service,  and  it  was 
not  caused  by  the  act  of  a  third  person  or  fellow  employe  who  intended 


WORKMEN'S  COMPENSATION  LAW  103 

to  injure  him  because  of  reasons  personal  to  him,  and  not  directed  against 
him  as  an  employe  or  because  of  his  employment." 

As  conclusions  of  law  the  court  finds  that  the  employe,  Charles  DeCook, 
is  entitled  to  compensation  from  said  employer  at  the  rate  of  $8.10  per 
week  for  one  hundred  weeks  and  to  $115  for  medical  and  surgical  treat- 
ment and  costs. 

Memorandum. 

An  injury  arises  in  the  course  of  an  employment  when  it  is  sustained 
while  the  employe  is  engaged  generally  in  or  about  the  service  for  which 
he  was  employed.  It  arises  out  of  the  employment  when,  after  the  fact, 
we  can  see  that  it  was  occasioned  by  a  danger  which  was  incident  to 
that  service,  as  opposed  to  a  danger  which  was  wholly  unconnected  there- 
with. 

Plaintiff  was  not  limited  by  any  hard  and  fast  rule  to  the  performance 
of  particular  acts.  As  compared  with  many  employes  his  service  was 
quite  general  in  its  character.  At  the  time  of  the  injury  plaintiff  was 
engaged  in  attempting  to  accomplish  a  result  which  reasonably  he  might 
well  have  thought  within  the  service  required.  Having  in  mind  the  scope 
and  purpose  of  the  act  under  which  he  claims  to  recover,  it  would  be 
an  unwarrantably  narrow  construction  to  hold  that  the  injury  in  ques- 
tion did  not  arise  out  of  and  in  the  course  of  his  employment. 

The  case  of  Plumb  vs.  Cobden  Flour  Mills  Co.,  House  of  Lords,  1913, 
relied  upon  by  Defendant,  seems  to  rest  upon  a  claim  which  is  nothing 
more  or  less  than  that  the  workman  adopted  an  unusual  and  perhaps 
negligent  method  of  doing  the  work  at  which  he  was  engaged,  and  the 
conclusion  seems  to  be  that  because  he  was  so  negligent  therefore  his 
injury  did  not  arise  out  of  his  employment.  This  is  strange  doctrine, 
whether  from  the  House  of  Lords  or  from  anywhere  else,  unless  it  is  a 
necessary  deduction  because  of  some  statutory  provision.  It  is  at  variance 
with  the  best  thought  of  this  country,  and  especially  with  our  own  statute, 
under  which  mere  negligence  is  no  bar  to  such  a  claim  as  this,  unless 
the  negligence  be  wilfull. 

This  case  was  appealed  to  the  supreme  court  which  affirmed  the 
decision  of  the  district  court.  The  supreme  court  states  as  follows: 

"If  the  injury  arose  out  of  and  in  the  course  of  the  employment 
the  judge  is  right. 

"The  injured  servant,  Charles  DeCook,  had  worked  for  relator,  in 
the  bottling  house  of  its  brewery  at  Duluth,  Minn.,  as  the  foreman's  helper 
during  more  than  five  years  prior  to  the  accident.  In  the  bottling  room 
were  a  number  of  electric  light  bulbs.  To  protect  them  against  breakage, 
a  wire  screen  cover  was  provided.  These  screens  were  fastened  with  a 
lock  to  prevent  the  bulbs  from  being  stolen.  The  foreman  carried  the 
key — a  simple  three-cornered  contrivance.  It  was  part  of  DeCook's  duty 
to  replace  any  of  the  light  bulbs  which  broke  or  became  defective.  In 
doing  this  he  had  to  get  a  key  from  the  foreman,  unlock  the  cover,  take 
the  broken  bulbs  to  the  foreman,  then  go  to  the  office  or  store  room  for 
another  bulb,  replace  it,  lock  the  guard,  and  return  the  key  to  the  foreman. 


104  STATE  DEPARTMENT  OF  LABOR 

On  April  9,  1914,  DeCook  had  occasion  to  go  to  the  basement  where  some 
other  employes  were  engaged.  One  of  these  handed  DeCook  what  ap- 
peared to  be  an  empty  cartridge  shell  of  unusual  length.  It  occurred 
to  DeCook  that  the  empty  shell  could  be  easily  fashioned  into  a  key  so 
as  to  save  the  time  and  energy  spent  in  hunting  up  the  foreman  and 
carrying  the  key  back  when  light  bulbs  had  to  be  replaced.  During  the 
working  hours,  in  the  afternoon  of  April  9,  1914,  DeCook  went  to  the 
place  in  the  room  where  the  tools*  and  appliances  to  make  the  ordinary 
repairs  called  for  in  the  business  were  kept,  took  a  hammer  and  began 
to  hammer  the  supposed  empty  shell  into  a  key.  The  shell  happened 
to  be  an  unexploded  dynamite  cap  and  the  third  blow  set  it  off.  A  frag- 
ment therefrom  pierced  plaintiff's  right  eye  and  destroyed  the  sight. 

"It  is  earnestly  insisted  that  the  facts  show  DeCook  to  have  departed 
from  his  duties  as  a  servant  when  he  met  with  the  accident,  and  to  have 
been  engaged  in  something  entirely  at  variance  with  the  master's  business 
and  without  the  scope  of  the  employment.  Dynamite  caps  were  neither 
kept  nor  used  in  relator's  establishment,  and,  it  is  said,  DeCook  had  no  ex- 
press or  implied  authority  to  make  a  key,  hence  the  accident  cannot  be 
held  to  have  arisen  out  of  the  employment. 

"The  law  in  question  was  intended  to  relieve  against  the  hardships 
resulting  from  the  many  unfortunate  accidents  which  do  take  place  in  this 
age  of  extensive  use  of  complicated  machines  and  appliances,  and  of  great 
enterprises  necessitating  the  indiscriminate  employment  of  the  employ- 
er's fault  or  negligence  is  eliminated  from  cases  arising  under  this  act. 
The  intention  was  to  compensate  all  accidental  injuries  growing  out  of 
and  received  in  the  service  except  those  intentionally  self-inflicted  or  due 
to  intoxication.  The  statute  is  highly  remedial  in  character.  The  courts 
ought  therefore  to  guard  against  a  narrow  construction,  and  should  not 
exclude  a  servant  from  the  benefits  thereof  unless  constrained  by  un- 
ambiguous language  of  the  clear  intent  as  gathered  from  the  entire  act. 

"Both  employer  and  employe  in  this  case  are  within  part  2,  which 
provides  that  in  every  case  of  personal  injury,  'caused  by  accident,  arising 
out  of  and  in  the  course  of  employment,  without  regard  to  the  question 
of  negligence,'  compensation  shall  be  paid  according  to  a  fixed  schedule. 
(Sec.  8213,  G.  S.  1913.)  The  clause  here  involved  is  afterwards  defined 
in  the  act  in  these  words:  'Without  otherwise  affecting  the  meaning  or 
interpretation  of  the  abridged  clause,  "personal  injuries  arising  out  of 
and  in  the  course  of  employment,"  it  is  hereby  declared:  Not  to  cover 
workmen  except  while  engaged  in,  on,  or  about  the  premises  where  their 
services  are  being  performed  or  where  their  services  requires  their  presence 
as  a  part  of  such  service  at  the  time  of  the  injury  caused  by  the  act  of 
a  third  person  or  fellow  employe  intended  to  injure  the  employe  because 
of  reasons  personal  to  him,  and  not  directed  against  him  as  an  employe, 
or  because  of  his  employment.'  (Sec.  8230,  i.) 

"The  trial  court  found  expressly  that  DeCook  was  within  the  partial 
definition  quoted  when  injured;  and  the  evidence  sustains  the  finding  in 
that  respect.  However,  the  so-called  definition  is  rather  in  the  nature 
of  a  limitation  of  the  clause  than  an  inclusive  definition  thereof,  so  that 


WORKMEN'S  COMPENSATION  LAW  105 

it  still  is  to  be  determined  whether  the  injury  to  DeCook  arose  out  of 
and  in  the  course  of  his  employment.  In  England  and  also  in  some  courts 
here  attempts  have  been  made,  with  more  or  less  success,  to  formulate 
general  rules  with  regard  to  the  shade  of  distinction  between  the  terms 
out  of  and  in  the  course  of,  as  used  in  the  act.  All  agree  that  the  ex- 
pressions are  not  intended  to  be  synonymous.  An  injury  may  be  received 
in  the  course  of  the  employment,  and  still  have  no  casual  connection  with 
it  so  that  it  can  be  said  to  arise  out  of  the  employment.  Bryant  vs.  Fissell 
84  J.  L.  72,  McNicoPs  case  215  Mass.  497,  Barnes  vs.  Nunnery  Colliery 
Co.,  Ltd.,  1912  App.  C.  44  (Eng.)  Plumb  vs.  Cobden  Flour  Mills  Co., 
Ltd.,  1914  App.  C.  62  (Eng.)  also  reported  in  vol.  109,  Law  Times,  p. 
759;  Hills  vs.  Blair,  148  N.  W.  245;  Hopkins  vs.  Michigan  Sugar  Co.,  150 
N.  W.  325.  Under  the  decisions  it  is  reasonably  clear  that  DcCook's  in- 
jury was  received  in  the  course  of  employment.  The  doubtful  proposition 
is  whether  it  arose  out  of  the  employment. 

"We  shall  not  attempt  to  formulate  a  definition  of  the  phrase,  acci- 
dental injury  arising  out  of  the  employment,  except  to  say  that  the  acci- 
dent causing  the  injury  must  arise  out  of  work  or  business  being  done 
for  the  master  either  by  direct  or  implied  authority.  The  trial  court  evi- 
dently took  the  view  that  DeCook  in  good  faith  believed  he  was  furthering 
his  master's  business  and  performing  an  act  which  he  might  reasonably 
be  expected  to  do  when  he  undertook  to  supply  himself  with  a  key.  He 
had  never  been  told  that  the  light  bulbs  were  to  be  under  lock  as  to  him 
who  was  charged  with  the  duty  of  seeing  that  the  broken  and  defective 
ones  were  replaced.  He  had  a  variety  of  matters  to  attend  to  in  which 
he,  like  servants  generally,  had  to  rely  on  the  promptings  of  his  own 
judgment  as  to  detail.  Undesirable,  indifferent,  and  of  little  value  indeed 
are  the  services  of  an  employe  who  must  be  expressly  directed  as  to  the 
time,  manner,  and  extent  of  doing  each  particular  task.  Hence,  when  a 
servant  undertakes  in  the  course  of  his  employment,  during  the  proper 
hours  therefor,  and  in  the  proper  place  to  do  something  in  furtherance 
of  his  master's  business  and  meets  with  accidental  injury  therein  the 
trial  court's  finding,  that  the  accident  arose  out  of  and  in  the  course  of 
employment,  should  not  be  disturbed,  unless  it  is  clear  to  us  that  the 
ordinary  servant,  in  the  same  situation  would  have  no  reasonable  justi- 
fication for  believing  that  what  he  undertook  to  do  when  injured  was 
within  the  scope  of  his  implied  duties.  If  another  servant  duly  engaged 
in  the  master's  work  had  had  his  sight  destroyed,  instead  of  DeCook,  in 
this  accident  the  thought  would  have  been  almost  irresistible  that  this 
law  was  meant  to  cover  such  injury.  But,  upon  the  facts  in  this  case, 
we  doubt  whether  DeCook  should  occupy  a  less  favorable  position.  If 
the  attempt  to  make  a  key  was  reasonably  within  the  scope  of  his  em- 
ployment, the  fact  that,  from  ignorance  or  error  of  judgment,  he  made 
use  of  dangerous  material,  not  provided  by  the  master,  should  not  neces- 
sarily exclude  the  conclusion  that  the  injury  arose  out  of  the  employment. 
The  term  cannot  be  restricted  to  injuries  caused  from  anticipated  risks 
of  the  service  if  the  law  is  to  be  of  the  benefit  intended. 

"Our  conclusion  is  that  the  judgment  is  right  and  should  stand." 


106  STATE  DEPARTMENT  OF  LABOR 


Court  Decisions — (Ohio) 

An  employe's  duty  was  to  drive  a  light  delivery  wagon  drawn  by  a 
horse  which  was  used  in  making  deliveries,  obtaining  supplies,  etc.,  and 
when  not  so  employed  to  work  in  the  shop  of  the  employer.  It  was  also 
a  part  of  his  duty  to  take  care  of  the  horse  which  he  drove,  and  in  so  doing 
to  take  the  horse  and  wagon  to  his.  home  in  the  suburbs  on  Saturday  after- 
noon in  order  to  give  the  horse  Sunday  pasture,  and  to  drive  him  back 
to  the  city  on  Monday  morning.  He  was  injured  on  a  Monday  morning 
while  caring  for  the  horse,  preparatory  to  driving  to  the  city.  Held  that 
the  injury  was  received  in  the  course  of  his  employment. 

1.  The  provisions  of  Section  26  of  the  compensation  act  relate  solely 
to  civil  actions  for  damages,  and  not  to  proceedings  before  the  Industrial 
Commission    of   Ohio.      (Biddinger   vs.    The   Champion    Iron    Co.,    decided 
July  1,   1914,  followed.) 

2.  The  violation  by  an  employe  of  a  rule  of  his  employer  does  not 
necessarily  take  him  out  of  the  course  of  his  employment.      (Stopyra  vs. 
The  U.  S.  Coal  Co.,  decided  August  19,  1914,  followed.) 

3.  Workmen    engaged    in    mining    coal    are    employes    of    the    mine 
owner,  though  the  mining  operations  are  carried  on  under  a  contract  with 
a  third  party  who  selects  and  pays  the  workmen,  where  by  the  terms  of 
the   contract  the  mine  owner   reserves   control   and   supervision   over   the 
working  of  the  mine.      (McAllister  vs.  The  National  Fireprofing  Co.,  de- 
cided August  31,  1914,  approved  and  followed.) 

An  employe  who,  after  suspending  work  for  the  day,  and  while  pre- 
paring to  leave  his  employer's  premises,  negligently  walked  over  a  pile 
of  spindles  to  the  place  where  his  coat  and  hat  were  hanging  for  the 
purpose  of  obtaining  those  articles  of  apparel,  and  was  injured  by  one  of 
the  spindles  turning  and  spraining  his  ankle,  was  injured  in  the  course 
of  his  employment  and  is  entitled  to  compensation. 

An  employe  employed  by  a  brewing  company  to  care  for  and  drive 
a  team  of  horses  used  in  transporting  a  beer  wagon,  was  injured  by  fall- 
ing out  of  a  door  in  the  second  story  of  a  building  in  which  the  horses 
were  kept  while  he  was  preparing  to  feed  them.  Held  that  the  injury 
was  sustained  in  the  course  of  employment. 

An  employe  was  employed  to  operate  a  buffing  machine.  He  was  paid 
by  the  hour  and  was  not  employed  for  any  specified  length  of  time.  He 
was  injured  within  three  hours  after  he  entered  upon  his  employment, 
by  being  struck  on  the  left  side  near  the  region  of  his  heart  by  a  "buffer's 
chuck,"  which  disabled  him  so  that  he  had  to  suspend  work  for  the  day, 
and  was  unable  to  again  resume  work  prior  to  his  death,  which  occurred 
sixteen  days  after  the  injury.  The  deceased  employe  was  unmarried  and 
lived  with  his  mother  whom  he  supported.  Held  that  the  employment 
was  not  casual;  that  the  injury  was  the  cause  of  his  death;  that  the 
mother  was  wholly  dependent  upon  him  for  support  at  the  time  of  his 
death. 

One  who  is  employed  by  a  manufacturing  company  to  do  the  paint- 


WORKMEN'S  COMPENSATION  LAW  107 

ing  of  its  products,  the  manufacturing  company  furnishing  a  place  to  do 
the  work  by  the  piece  or  job,  the  person  employed  being  left  free  to 
employ,  direct  and  discharge  his  helpers,  the  manufacturing  company 
retaining  no  control  over  the  mode  or  manner  of  doing  the  work  except 
that  the  person  employed  to  do  the  painting  and  his  helpers  are  required 
to  observe  shop  regulations  applying  to  all  employes  of  the  manufactur- 
ing company,  is  not  an  independent  contractor  but  an  employe.  It  follows 
that,  being  an  employe  of  the  manufacturing  company,  he  acted  as  their 
agent  in  employing  his  helpers,  and  they,  too,  are  employes  of  the  manu- 
facturing company. 

1.  A  claim  for  compensation  on  account  of  injury  sustained  by  an 
employe  in  the  course  of  employment  which  results  in  permanent  partial 
disability  such  as  is  defined  in  the  schedule  contained  in  Section  33  of  the 
workmen's   compensation   act  does   not   abate  by  reason   of  the   death   of 
such  employe  from  causes  other  than  the  injury,  even  though  the  amount 
of  such  compensation  had  not  been  determined  prior  to  his  death. 

2.  Whether  compensation  which  would  have  been  paid  to  an  injured 
employe  had  his  death  not  ensued  can  lawfully  be  paid  to  his  dependents 
in  the  event  of  his  death — quaere. 


Court  Decisions     (Massachusetts) 

Signing  of  settlement  receipt  does  not  bar  proceedings  by  employe 
to  determine  right  to  reimburse  on  account  of  expenditure  for  medical 
services. — The  insurer  objected  to  the  taking  of  jurisdiction  by  a  com- 
mittee of  arbitration  in  the  case  of  Ducy  vs.  American  Mutual  Li- 
ability Insurance  Company,  claiming  that  the  signing  of  a  settle- 
ment receipt  by  him  acted  as  a  bar  to  proceedings  to  determine  his 
right  to  obtain  payment  of  the  amount  expended  for  medical  services 
under  the  statute.  The  committee  ruled  that  it  had  jurisdiction,  and 
awarded  the  employe  the  sum  of  $18  to  cover  his  expenditure  for  medical 
services  under  the  statute. 

Inference  of  fact  drawn  by  committee. — The  evidence  shows  that  it 
was  the  custom  of  the  employe  to  warn  the  stableman  of  the  arrival  of 
each  team  by  ringing  a  bell,  and  it  was  often  his  habit  to  look  out  of  the 
window  to  notice  whether  the  team  had  been  admitted.  The  body  of  the 
employe  was  found  underneath  the  window  from  which  the  employed  looked 
to  note  the  arrival  and  admission  of  the  teams,  and  it  was  held  by  the 
committee  of  arbitration,  in  the  case  of  O'Brien  vs.  Casualty  Company 
of  America,  that  the  injury  arose  out  of  and  in  the  course  of  the  em- 
ployment. 

Partial  dependent  receives  entire  earnings  of  employe. — It  was  held, 
in  Devaney  vs.  American  Mutual  Liability  Insurance  Company,  that  the 
partial  dependent  who  receives  all  the  earnings  of  the  employe  was 
entitled  to  full  compensation. 


108  STATE  DEPARTMENT  OF  LABOR 

Court  Decisions— (California) 

Mrs.  Alice  F.  Goering  vs.  The  Brooklyn  Mining  Company: 

Where  an  employe,  during  working  hours,  sits  down  under  an  ore 
bin  to  rest  in  the  shade  and  is  killed  by  the  collapse  of  the  bin,  this  fact 
does  not  establish  wilful  misconduct  in  the  absence  of  evidence  tending 
to  show  that  deceased  h#d  been  forbidden  to  rest  in  the  shade  under  this 
bin  for  brief  periods  of  time  during  working  hours,  especially  where  the 
evidence  fails  to  show  that  there  was  reason  to  anticipate  danger  in 
resting  in  the  place  where  the  accident  occurred. 

An  employe  is  acting  in  the  course  of  his  employment  if  at  the 
time  of  the  accident  he  be  resting  for  a  short  time  in  the  shade  during 
working  hours.  An  employe  is  under  the  protection  of  the  Compensa- 
tion Act  while  doing  any  act  which  a  person  employed  may  •  reasonably 
do  during  working  hours,  whether  he  be  actually  at  work  at  the  time 
of  the  accident  or  not. 

A  mere  secret  intention  to  terminate  the  employment  does  not  in  fact 
end  the  relation  of  employer  and  employe  until  notice  be  given  to  the 
employer  or  the  employe  abandons  the  job  by  subsequent  failure  to  per- 
form the  work  assigned.  An  employe  is  under  the  protection  of  the  Com- 
pensation Act  even  after  his  discharge,  providing  he  be  injured  upon 
the  premises  of  the  employer  while  remaining  there  for  reasons  connected 
with  his  former  employment. 

Harry  H.  Stevens  vs.  Western  Indemnity  Company: 

Where  a  teamster  owning  his  own  team  and  wagon  contracts  to  do 
hauling  for  an  employer,  and  as  part  of  the  terms  of  the  agreement  it  is 
found  that  the  teamster  agrees  to  provide  a  team  and  driver  for  six  dollars 
per  day,  and  later  appears  for  work  himself  driving  the  team,  and  such 
teamster  is  required  to  work  eight  hours  per  day,  and  in  doing  such  work 
is  under  the  immediate  direction,  control  and  supervision  of  the  employer 
as  to  the  mode  of  performing  the  work,  and  the  employer  retains  the 
power  and  right  of  discharging  the  teamster  and  ruling  his  team  off 
the  work  if  the  services  rendered  were  not  satisfactory,  and  no  contract 
is  made  for  a  specified  amount  of  hauling,  or  specified  quantity  of  work 
to  be  done  or  specified  length  of  time  during  which  the  services  should 
be  rendered,  then  the  agreement  amounts  to  a  contract  of  hire  and  is 
not  an  independent  contract  for  the  furnishing  of  services. 

Where,  under  the  circumstances  mentioned  in  the  preceding  para- 
graph, it  further  appears  that  one  week  after  the  beginning  of  the  employ- 
ment the  teamster  was  requested  to  and  did  furnish  another  team  belong- 
ing to  himself,  with  a  driver  hired  and  paid  for  by  himself,  to  work  for 
the  employer  at  six  dollars  ($6)  per  day  for  the  use  of  the  team  and 
driver,  such  circumstances  does  not  change  the  status  of  the  employe  to 
that  of  an  independent  contractor.  While  it  is  true  that  the  injured  em- 
ploye may  have  been  an  independent  contractor  as  to  the  second  team 
provided  by  him  for  defendant's  work,  he  is  at  the  same  time  an  employe 
under  the  terms  of  the  first  contract  made  between  himself  and  his  em- 


WORKMEN'S  COMPENSATION  LAW  109 

ployer.     It  is  the  latter  contract  that  must  be  consulted  to  determine  the 
rights  between  the  original  employe  and  his  employer. 

The  contention  that  the  findings  and  award  of  the  Commission  are 
unreasonable,  in  a  case  involving  the  granting  or  denying  of  compensa- 
tion, as  stated  in  paragraph  3  of  section  84,  does  not  apply  to  awards 
granting  or  denying  compensation.  This  section  does  not  include  the 
word  "award"  and  therefore  applies  only  to  regulations  made  by  the 
Commission  for  the  safeguarding  of  employes  against  safety  orders,  de- 
cisions, rules  or  regulations,  unreasonable  in  character.  The  reasonable- 
ness or  unreasonableness  of  an  award  for  compensation  is  not  a  ground 
upon  which  an  application  for  rehearing  of  an  award  grafting  or  denying 
compensation  can  be  based. 

Jose  Salvatore  vs.  New  England  Casualty  Company: 

Where  a  person  sustains  by  accident  a  broken  leg,  causing  temporary 
total  disability  for  which  compensation  is  awarded,  and  in  the  same  acci- 
dent, a  crushing  of  the  chest,  which,  after  the  healing  of  the  leg,  develops. 
a  serious  illness,  such  person  has  suffered  a  continuous  disability  result- 
ing from  said  accident,  and  is  entitled  to  claim  compensation  therefor,  even 
though  the  illness  due  to  the  chest  injury  did  not  arise  until  more  than, 
six  months  from  the  original  accident. 

Where  the  evidence  warrants  it,  compensation  for  increased  disabil- 
ity resulting  from  the  accident  may  be  awarded  by  supplementary  order 
after  notice,  without  the  necessity  of  the  filing  of  a  verified  application  for 
a  rehearing  by  the  injured  employe.  The  request  for  such  relief  is  not  in 
the  nature  of  a  petition  for  a  rehearing  as  it  does  not  call  into  question 
the  correctness  of  any  prior  decision  by  the  Commission.  It  calls  instead 
for  supplemental  relief  which  can  be  given  without  any  other  formality 
than  notice  and  an  opportunity  to  be  heard. 

Where  compensation  is  requested  upon  the  ground  that  applicant's 
disability  has  increased  since  the  former  award  of  compensation,  such 
request  is  not  a  new  proceeding  within  the  period  of  limitations  of  the 
Compensation  Act,  but  is  the  exercise  of  a  power  conferred  upon  the 
Commission  by  section  82  (b)  of  said  Act. 

An  industry  is  liable  for  all  legitimate  consequence  following  from 
an  accident,  among  which  consequences  affecting  the  extent  of  disability 
is  the  possibility  of  an  error  of  judgment  or  unskillfulness  on  the  part 
of  any  attending  physician,  whether  called  in  by  the  employer  or  the 
employe. 

The  Commission  declines  to  give  opinions  on  hypothetical  cases  or  to 
lay  down  general  statements  or  rules  of  law  binding  upon  it,  aside  from 
rulings  necessary  to  the  making  of  findings  of  fact,  awards  and  opinions 
upon  issues  arising  in  causes  submitted. 

A.  L.  Olson  vs.  S.  J.  Tice  and  Globe  Indemnity  Company: 

Where  an  injured  employe  asks  that  the  indemnity  awarded  be  com- 
muted to  a  lump  sum  to  establish  him  in  business,  and  it  appears  that 
he  is  intemperate  and  had  been  arrested  for  drunkenness  even  since  his 


110  STATE  DEPARTMENT  OF  LABOR 

injury,    and    there    are    no    unusual    circumstances    making    commutation 
desirable,  such  request  will  be  refused. 

James   Collins   vs.   Southwestern   Surety   Insurance    Company: 

Mere  disobedience  of  an  order  does  not  necessarily  constitute  wilful 
misconduct,  in  the  absence  of  a  showing  that  the  disobedience  was  wilfdl 
and  premeditated  and  was  prompted  by  a  bad  state  of  mind.  It  must 
also  be  shown  that  orders  given  by  the  employer  were  accompanied  by 
such  disciplinary  measures  as  were  necessary  to  entitle  them  to  respect. 
Where  discipline  is  unreasonably  lax  by  the  employer  and  his  orders  are 
habitually  disregarded  by  his  employe,  disobedience  of  such  orders  will 
not  constitute  wilful  misconduct. 

Where  an  employe  is  injured  by  defective  loading  of  a  hod  upon  a 
mortar  bucket  being  used  to  hoist  mortar  to  the  upper  story  of  a  building 
under  construction,  and  the  evidence  shows  that  the  injured  employe  has 
fastened  the  hod  to  the  bucket,  that  his  employer  seeing  it  had  called 
down  to  him  not  to  have  the.  bucket  sent  up  but  that  other  workmen  stand- 
ing near  by  shouted  that  it  was  all  right  and  for  the  driver  of  the  horse 
to  go  ahead,  and  the  applicant  is  injured  by  the  hod  falling  from  the 
bucket  in  being  taken  out  at  the  upper  story,  such  evidence  is  insufficient 
to  establish  wilful  misconduct  of  the  injured  employe  contributing  to  his 
accident.  The  accident  was  in  fact  due  to  others  causing  the  bucket  to 
be  hoisted,  directly  assented  to  by  the  employer  by  failing  to  stop  them. 

Elora   May  Douglas  vs.   London  and  Lancashire   Guarantee   and  Accident 
Company: 

Where  an  employe  is  given  treatment  following  the  accident  by  a 
physician  designated  by  the  employer  or  the  latter's  insurance  carrier, 
and  such  physician  discharges  the  employe  as  cured,  but  thereafter  the 
employe  obtains  treatment  from  another  physician  of  his  own  choice,  for 
the  same  injury,  and  it  is  shown  to  the  satisfaction  of  the  Commission 
that  the  disability  had  not  terminated  at  the  time  of  the  applicant's  dis- 
charge, the  applicant  is  entitled  to  an  award  for  the  reasonable  value 
of  surgical  treatment  furnished  by  the  physician  of  his  own  selection. 

John   Hoffman   vs.    Maryland    Casualty    Company: 

Where  an  employe  bruises  his  leg;  this  bruise  subsequently  breaking 
down  into  an  ulcer,  and  the  duration  of  this  ulcer  is  greatly  extended  by 
a  condition  of  varicose  veins,  but  it  is  shown  that  the  varicose  condition 
did  not  in  any  way  contribute  to  the  formation  of  the  ulcer,  compensation 
will  be  allowed  for  the  full  period  of  disability. 

Gus  Lentz  vs.  Southern   Oregon   Transportation  Company: 

Where  the  injured  employe  is  a  resident  of  California,  the  employer 
is  a  corporation  chartered  in  California  and  doing  much  of  its  business 
in  the  State,  and  the  contract  of  employment  is  made  here,  such  employe 
is  entitled  to  compensation  if  injured  upon  a  ship  belonging  to  the  em- 
ployer while  the  ship  is  lying  at  its  dock  at  a  port  in  Oregon. 


WORKMEN'S  COMPENSATION  LAW  111 

Claude   Terrill  Rouner  vs.  Aetna  Life  Insurance  Company: 

Where  an  employe  sustains  a  serious  injury  to  one  eye  in  1911,  which 
will  eventually  result  in  total  blindness  of  that  eye  and  in  1914  sustains 
the  immediate  destruction  of  the  sight  of  the  other  eye  by  accident  oc- 
curring in  the  course  of  his  employment  with  the  defendant,  the  percent- 
age of  permanent  disability  for  which  the  employer  is  liable  in  compen- 
sation is  to  be  determined  solely  with  reference  to  the  physical  injuries 
caused  by  the  second  accident  and  not  with  reference  to  the  condition 
of  the  applicant  ensuing  after  the  accident  as  influenced  by  the  first.  The 
employer  is  therefore  liable  to  pay  compensation  for  the  loss  of  one 
eye  and  not  for  total  blindness. 

Mrs.  Carrie  A.  Pettis  vs.   The  Fidelity  and  Casualty  Company  of  Neiv 

York: 

Where  an  employe  is  engaged  in  snapping  and  stripping  string  beans 
for  a  cannery,  after  working  for  two  weeks,  she  notices  a  blister  or  sore 
upon  her  thumb,  which  becomes  worse  and  within  two  or  three  days 
becomes  infected  and  very  painful,  subsequently  requiring  the  amputa- 
tion of  the  thumb,  such  injury  is  due  to  accident  and  not  to  occupational 
disease.  It  is  not  indispensable  to  establishing  her  claim  that  the  appli- 
cant be  able  to  swear  what  bean  pod  was  that  finally,  (  by  the  friction 
of  its  rough  surface  against  the  thumb,  made  a  hole  in  the  skin,  it  being 
sufficient  that  a  hole  was  made,  that  infection  did  enter,  and  that  dis- 
ability was  occasioned  thereby. 

Where  the  fact  that  the  applicant  was  suffering  from  a  sore  thumb 
was  reported  to  the  foreman  of  the  department  in  which  she  was  em- 
ployed, such  -notice  is  sufficient  to  make  the  employer  liable  for  the  reas- 
onable cost  of  medical  treatment  if  it  be  later  shown  that  such  soreness 
was  due  to  accident  arising  out  of  the  employment.  It  matters  nothing 
that  the  parties  thought  the  injury  trivial  as  there  was  abundant  experi- 
ence in  the  cannery  with  effects  following  such  injuries  to  warrant  the 
furnishing  of  proper  treatment. 

Lucille   Augusta  Rieff  vs.   City   of  Sacramento: 

Where  a  school  teacher,  after  dismissing  her  school  for  the  day,  re- 
mains upon  the  school  premises  to  finish  her  work  and  while  at  work 
goes  to  the  telephone  for  a  moment  to  send  a  message  upon  private  busi- 
ness, and  is  injured  by  tripping  over  the  telephone  cord  and  falling,  such 
accident  occurs  in  the  course  of  and  arises  out  of  the  employment.  The 
course  of  employment  is  not  restricted  to  acts  actually  done  for  the  em- 
ployer; it  also  includes  all  acts  which  an  employe  may  reasonably  do 
while  at  work. 

Mrs.  Lillian  J.  Hallett  vs.  Maryland  Casualty  Company: 

Where  a  woman  is  employed  in  a  restaurant,  part  of  her  duties  being 
to  operate  a  dumb  waiter,  and  prior  to  any  definite  illness  she  complains 
of  feeling  ill  and  of  finding  the  heavy  lifting  of  the  dumb  waiter  too 
hard  for  her,  and  on  a  Saturday  afternoon  she  goes  to  her  home  complain- 


112  STATE  DEPARTMENT  OF  LABOR 

ing  of  illness  and  on  the  following  day  is  taken  seriously  ill  with  acute 
dilation  of  the  heart,  such  evidence  is  insufficient  to  prove  that  the  heart 
trouble  was  proximately  caused  by  an  accident  occurring  in  the  course 
of  the  employment. 

B.  S.  Craig  vs.  George  Hartson: 

Where  a  carpenter  is  engaged  by  a  farmer  for  the  sole  purpose  of 
building  a  barn  and  is  injured  while  working  upon  said  barn  upon  the 
farm,  he  is  not  at  the  time  of  his  accident  engaged  in  farm  labor  and  is 
therefore  under  the  protection  of  the  Workmen's  Compensation,  Insurance 
and  Safety  Act. 

M.  A.  Block  vs.  Pacific  Coast  Casualty  Company: 

A  person  employed  as  a  traveling  salesman  whose  duty  it  is  to  solicit 
orders  from  grocery  stores,  who  slips  and  falls  while  walking  from  one 
store  to  another  in  the  course  of  his  employment,  is  entitled  to  compen- 
sation for  disability  sustained  thereby.  The  reason  for  the  slipping  and 
falling  is  immaterial  as  long  as  the  presence  of  some  sufficient  cause  is 
inferable,  and  if  the  accident  occurs  in  the  course  of  the  employment. 

Where  an  employe  is  injured  while  at  work,  sustaining  a  fracture 
of  the  left  leg,  and  is  taken  to  a  hospital  for  treatment  for  his  injury, 
and,  while  in  the  hospital,  slips  and  falls  on  arising  from  his  bed  because 
of  clumsiness  due  to  his  disability,  breaking  the  other  leg,  the  second 
accident  may  properly  be  regarded  as  a  continuation  of  the  first,  and 
is  therefore  compensable. 

The  contention  that  the  fractures  of  applicant's  legs  were  due  to 
a  disease  of  the  bones,  if  established,  would  not,  unless  the  defendants 
were  able  to  prove  that  the  bones  were  made  brittle  by  reason  of  some 
virulent  disease  of  long  standing,  suffice  to  overcome  the  general  rule  that 
the  employer  takes  the  employe  in  the  condition  in  which  he  is  when  he 
enters  his  employment,  and  is  responsible  for  results  of  injury,  notwith- 
standing the  fact  that  such  results  may  be  more  serious  than  would  be  the 
case  with  a  normal  person. 

Johanna  Head  vs.  Fidelity  and  Deposit  Company  of  Maryland: 

In  determining  whether  or  not  the  fast  driving  of  an  automobile 
constitutes  wilful  misconduct,  'the  Commission  must  be  guided  by  such 
fundamental  facts  as  the  condition  of  the  road,  the  time  of  day  and  the 
character  of  the  car. 

Driving  an  automobile  at  a  speed  of  thirty-five  to  forty-five  miles 
in  the  dark,  over  a  fairly  good  and  straight  road,  by  a  driver  familiar 
with  it,  in  a  heavy,  powerful  car,  equipped  with  strong  lights,  may  be 
hazardous,  but  does  not  exceed  gross  negligence,  nor  constitute  wilful 
misconduct. 

George  Sams  vs.  Komas  &  Dorros: 

Where  an  injured  employe,  failing  after  notice  to  his  employer  to 
receive  medical  assistance,  goes  first  to  one  physician  and  then  to  another 
.and  then  to  a  physician  in  a  third  town,  is  uncertain  what  to  do,  and 


WORKMEN'S  COMPENSATION  LAW  113 

because  of  this  neglect  to  act  quickly,  the  infection  requires  amputation 
of  a  finger,  held,  that  the  employer  is  responsible  for  the  disability  re- 
sulting and  for  the  medical  and  surgical  expense  for  ninety  days  from 
the  date  of  the  accident. 

Mrs.  A.  W.  Hewitt  vs.  Red  River  Lumber  Company: 

Where  intoxication  is  pleaded  as  a  defense,  the  burden  of  proof  rests 
upon  the  defendant  to  affirmatively  establish  the  facts  of  such  intoxi- 
cation. 

The  finding  of  a  bottle  resembling  a  whisky  bottle,  containing  a  fluid 
that  looks  like  whisky,  upon  the  body  of  an  employe  killed  in  an  accident, 
and  the  statement  of  a  fellow  employe  that  another  employe  had  told  him 
he  had  been  drinking  with  the  deceased  the  morning  of  the  accident,  held 
not  to  furnish  evidence  sufficient  to  establish  the  alleged  intoxication  of 
the  deceased. 

Because  of  the  extraordinary  hazard  of  the  occupation  of  an  electric 
lineman  and  his  need  of  full  possession  of  his  faculties,  the  Commission 
would  deny  compensation  if  the  evidence  were  sufficient  to  show  any 
considerable  degree  of  intoxication. 

Where  a  petition  for  a  rehearing  is  asked  upon  the  ground  of  newly 
discovered  evidence,  such  petition  must  show  the  nature  and  purport  of 
such  evidence  so  that  the  Commission  may  ascertain  its  materiality,  weight, 
and  why  it  could  not,  with  reasonable  diligence,  have  been  produced  at 
the  prior  hearing,  otherwise  the  petition  will  be  denied. 

Jeremiah  Broderick  vs.  San  Francisco  Stevedoring  Company  and   United 

States  Fidelity  and  Guaranty  Company: 

Where  an  employe  sues  his  employer  in  the  Superior  Court  for  dam- 
ages for  injuries  received  in  the  course  of  the  employment  and  the  court 
sustains  a  demurrer  to  the  complaint  because  it  fails  to  allege  that  the 
employe  was  injured  through  the  gross  negligence  or  wilful  misconduct 
of  an  elective  officer  of  the  corporation  employing  him-,  and  the  employe 
thereupon  makes  his  application  to  this  Commission  for  compensation, 
held,  that  his  act  of  filing  the  complaint  was  a  vain  proceeding  and  not 
sufficient  to  constitute  a  binding  election,  so  as  to  bar  the  employe  from 
his  right  to  compensation. 

Where  applicant  accepted  four  weeks'  medical  and  hospital  treatment 
from  his  employer,  and  the  services  of  a  doctor  employed  especially  to 
treat  him,  held,  that  he  accepted  such  treatment  as  compensation  and 
this  constituted  such  prior  election  of  remedies  as  to  bar  his  right  to 
begin  an  action  in  the  Superior  Court. 

L.  B.  Campbell  vs.  City  of  Los  Angeles: 

Where  it  was  customary  and  usual  for  a  battalion  chief  of  the  fire 
department  to  appoint  a  substitute  fireman  in  place  of  a  regular  fireman 
on  leave  of  absence,  held  that  such  substitute  is  entitled  to  disability 
compensation,  if  injured,  although  there  be  no  provision  either  permitting 
or  prohibiting  or  in  any  way  providing  for  such  employment  under  the 
civil  service  rules. 


114  STATE  DEPARTMENT  OF  LABOR 

The  appointment  by  an  officer  of  a  municipality  of  a  substitute  fire- 
man, the  acceptance  of  the  services  of  the  fireman  and  the  payment  to 
him  of  wages  by  the  municipality,  constitute  such  workman  an  "employe" 
within  the  meaning  of  the  Compensation  Act,  whether  he  be  such  or  not 
under  the  civil  service  rules. 

Mrs.  Sue  Avery,  William  Harry  Avery,   Winifred  Avery  and  Mrs.  M.  E. 

Avery  vs.  Pacific  Gas  and  Electric  Company: 

Total  dependency  of  a  wife  upon  her  husband  at  the  time  of  his  death 
by  accident,  is  not  established  as  a  conclusive  presumption  of  law  where, 
because  of  his  prior  desertion  of  her,  she  is  not  living  with  him  at  that 
time. 

Where  a  wife  is  not  living  with  her  husband  at  the  time  of  his 
death  by  reason  of  his  desertion,  her  dependency  upon  him  is  a  question 
of  fact  and  wher*e  the  evidence  shows  that  for  some  time  prior  to  his 
death  the  husband  had  made  no  contribution  to  his  wife's  support  de- 
pendency is  not  established. 

Minor  children  living  in  Oklahoma  for  whose  maintenance  their 
father  living  in  California  is  legally  liable  at  the  time  of  his  death,  are 
conclusively  presumed  wholly  dependent  upon  him  for  support. 

Evidence  of  contributions  made  to  a  mother  by  her  son  in  the  nature 
of  occasional  gifts  and  not  as  dependable  and  stated  contributions  to  her 
support,  is  insufficient  to  establish  dependency  of  the  mother  upon  the 
son. 

Hospital  Services 

The  question  as  to  whether  an  employer  or  an  insurance  carrier  shall 
be  held  liable  for  care  and  attention  received  by  an  injured  employe  at 
his  home  by  members  of  his  family,  when  ordered  to  be  taken  to  his  home 
instead  of  a  hospital,  has  occasioned  considerable  controversy.  The  em- 
ployer, before  the  physician  is  called,  or  the  physician  after  being  called, 
usually  directs  as  to  where  the  injured  employe  shall  be  removed.  A 
hurried  examination  does  not  always  reveal  the  seriousness  of  the  injury, 
and  as  a  result  an  injured  employe  is  removed  to  his  home  when  he 
should  have  been  removed  to  a  hospital  so  that  he  may  receive  the  care 
and  attention  which  the  injury  calls  for.  A  removal  at  a  later  date  to 
a  hospital  would  be  dangerous.  Members  of  the  family  or  friends  must 
give  the  care  and  attention.  The  California  supreme  court  in  Kelley  vs. 
Massachusetts  Bonding  &  Insurance  Co.,  in  passing  upon  the  provision 
for  hospital  services  in  the  California  law,  states  what  seems  to  be  a  fair 
rule: 

J.  B.  Kelley  vs.  Massachusetts  Bonding  and  Insurance   Company: 

A  claim  against  a  defendant  employer  or  insurance  carrier  for  those 
ordinary  services  which  members  of  a  family  render  each  other  when 
sick  or  injured  will  not  be  allowed,  but  in  case  of  injury  requiring  hos- 
pital treatment,  an  award  will  be  made  for  services  rendered  and  appli- 
ances furnished  to  the  injured  employe  by  another  member  of  his  family 


WORKMEN'S  COMPENSATION  LAW  115 

in  lieu  of  said  treatment  and  in  accordance  with  the  consent  and  direction 
of  the  physician  in  charge,  especially  where  the  member  rendering  such 
services  gives  up  his  regular  employment  in  order  to  render  such 
services. 

In  such  case  where  a  son  gives  up  employment  in  which  he  is 
earning  three  dollars  a  day  to  care  for  his  injured  father,  from  May  28th 
to  July  2nd,  held,  ninety  dollars  is  the  reasonable  value  of  such  services. 

Court  Decisions — (General) 

Distinction  Between  "Injury"  and  "Accidental  Injury" 

In  relation  to  an  accident  insurance  policy  the  United  States  supreme 
court  has  defined  the  term  "accidental"  as  follows:  "The  term  "acci- 
dental' was  used  in  the  policy  in  its  ordinary,  popular  sense,  as  meaning 
happening  by  chance;  unexpectedly,  or  as  not  expected.  If  a  result  is 
such  as  follows  from  ordinary  means  voluntarily  employed,  in  a  not  un- 
usual or  unexpected  way,  it  cannot  be  called  a  result  effected  by  accidental 
means.  But  if,  in  the  act  which  precedes  the  injury,  something  unforseen, 
unexpected,  unusual  occurs  which  produces  injury,  then  the  injury  has 
resulted  through  accidental  means."  Mutual  Accident  Assn.  vs.  Barry, 
131  U.  S.  100,  121;  9  Supt.  Ct.  R.  755;  333  L.  Ed.  60. 

Injuries   Without  External  Manifestation. 

Evidence  that  an  employe  was  strong  and  healthy  up  to  the  time  he 
complained  of  a  hurt  received  while  at  work  on  heavy  lifting  and  that 
he  died  suddenly  a  few  days  thereafter  for  no  other  assignable  cause,  is 
sufficient  to  show  that  he  sustained  some  internal  injury,  although  there 
were  no  external  manifestations  thereof.  Re  S.  W.  Powers,  Op.  Sol. 
Dep.  C.  &  L.,  p.  176. 

A  workman  was  employed  in  a  millrace,  where  he  had  to  work  for 
a  fortnight  up  to  his  knees  in  water.  As  a  result  he  contracted  inflam- 
mation of  the  kidneys  and  died.  It  was  held  that  this  was  a  personal 
injury  by  accident.  Sheeran  v.  F.  &  J.  Clayton  &  Co.  (1909),  44  Irish 
L.  T.  52;  3  B.  W.  C.  C.  583. 

Bends. 

It  has  been  held  that  "bends"  (a  condition  brought  about  by  working 
in  compressed  air) ,  was  in  the  nature  of  a  rupture  or  lesion  of  some  one 
of  the  internal  organs,  due  to  the  changes  between  high  and  normal  atmo- 
spheric pressure,  and  was  therefore  an  accidental  injury  entitling  a  work- 
man to  compensation  under  the  Federal  act.  Re  William  Murray,  Op. 
So.,  Dep.  C.  &  L.,  p.  201. 

Injuries  Due  to  Gradual  Wearing  or  Constant  Use  of  Particular  Members. 
Applicant  was  pinning  shirts  while  in  the  employ  of  the  defendant. 
The  continual  pressing  against  the  heads  of  the  pins  of  the  side  of  the 
right  forefinger  resulted  in  the  finger  becoming  hard.  A  white  spot  ap- 
peared, and  the- finger  grew  steadily  worse.  Pus  developed  and  applicant 


116  STATE  DEPARTMENT  OF  LABOR 

was  totally  disabled  for  about  three  weeks,  at  the  end  of  which  time  she 
recovered  so  as  to  be  able  to  do  light  housework.  Defendant  refused 
payment  on  the  ground  that  there  was  no  evidence  to  connect  the  alleged 
injury  with  an  accident  growing  out  of  the  employment.  This  was  one 
of  the  difficult  cases  that  come  before  Industrial  Accident  Boards.  Held 
that  applicant  was  entitled  to  recover,  because  the  nature  of  her  work 
made  it  a  moral  certainty  that  the  injury  resulted  as  claimed.  She  was 
denied  reimbursement  for  medical  and  surgical  treatment  because  she  did 
not  afford  the  defendant  an  opportunity  to  furnish  the  same.  She  was 
awarded  the  sum  of  $24.38  for  two  weeks'  total  indemnity  and  for  ten 
weeks'  partial  indemnity.  Smith  vs.  Munger  Laundry  Co.,  Cal.  Indus. 
Ace.  Bd.,  Nov.  19,  1913. 

Germ  or  Poison  Entering  System  Through  Break  in  Skin. 

Blood  poisoning  through  use  of  a  hypodermic  needle  is  an  accident. 
Bailey  vs.  Interstate  Gas.  Co.,  8  App.  Div.  127;  40  N.  Y.  Supp.  513,  aif'd, 
158  N.  Y.  723;  53  N.  E.  1123. 

Where  death  results  from  erysipelas,  which  follows  as  a  natural, 
though  not  as  a  necessary  consequence  of  an  accidental  wound  and  not 
of  the  diseases,  is  within  the  requirements  of  an  accident  policy  that  death 
must  result  from  accidental  means.  Caldwell  vs.  Iowa  State  Traveling 
Men's  Association,  000  Iowa  000;  136  N.  W.  Rep.  678. 

An  infection  of  the  hand  and  a  secondary  infection  of  the  leg;  re- 
sulting from  an  abrasion  of  the  skin  and  the  accidental  introduction  of 
a  foreign  substance,  is  an  injury  within  the  meaning  of  the  Federal  Act. 
Re  L.  B.  Green,  Op.  Sol.  Dep.  C.  &  L.,  p.  199.  In  the  last-mentioned 
case  the  workman  was  overhauling  a  pump  from  the  United  States  Ship 
"Vigilant"  when  his  hands  became  infected.  The  attending  physician 
made  an  incision  and  removed  pieces  of  hard  material  resembling  spicula 
of  coral.  It  appeared  that  the  pump  had  come  from  a  vessel  which  had 
been  in  service  in  Oriental  waters,  which  accounted  for  the  foreign  ma- 
terial. It  was  held  that  under  such  circumstances  he  was  entitled  to 
compensation. 

Skin  Affections  from  Acids  and  Other  Irritants. 

While  an  employe  working  on  a  steamship  was  removing  an  old  water 
closet  his  face  and  hands  were  poisoned  by  coming  in  contact  with  loose 
cement,  iron  rust,  old  dry  lead  and  probably  some  disinfectant,  and  it 
was  held  that  he  was  entitled  to  compensation  for  the  time  he  was  dis- 
abled. Re  F.  J.  Cournoyer,  Op.  Sol.  Dep.  C.  &  L.,  p.  582. 

Where  a  workman  has  eczema  which  he  contended  had  been  aggra- 
vated by  coming  in  contact  with  salt  water,  while  working  about  a  ship, 
that  the  eczema  had  not  been  aggravated  and  compensation  was  denied. 
The  question  of  whether  or  not  compensation  would  have  been  granted 
had  it  appeared  that  the  eczema  had  been  aggravated  by  the  salt  water, 
was  not  decided,  but  the  inference  to  be  derived  from  the  case  is  that 
under  such  circumstances  compensation  would  have  been  granted.  Re 
C.  B.  Scanlan,  Op.  Sol.  Dep.  C.  &  L.,  p.  590;  s.  c.  p.  591. 


WORKMEN'S  COMPENSATION  LAW  117 

Contracting  Infectious  and  Contagious  Diseases;  Anthrax;  Glanders. 

If  a  germ  causes  a  bodily  ailment  without  an  abrasion  of  the  skin 
the  general  rule  is  that  the  result  is  a  disease  and  not  an  accidental  injury, 
within  the  meaning  of  an  accident  insurance  policy.  Bacon  vs.  U.  S. 
Mutual  Accident  Assn.,  123  N.  Y.  304.  In  the  last  mentioned  case  the 
deceased  died  from  anthrax  and  it  was  held  that  the  cause  of  death  was 
a  disease  and  not  an  accident.  A  contrary  ruling  has  been  made  under 
the  British  Compensation  Act,  where  a  workman  contracted  the  disease 
of  anthrax  by  a  germ  settling  on  his  eye  while  sorting  wool  which  was 
infected  with  anthrax.  It  was  held  that  he  had  suffered  injury  by  acci- 
dent and  was  entitled  to  compensation.  Britons,  Limited,  vs.  Turvey 
(1905),  A.  C.  230,  7  W.  C.  C.  I.  See  also  H.  P.  Hood  &  Son  vs.  Mary- 
land Gas.  Co.,  206  Mass.  223;  92  N.  E.  329,  holding  that  contracting 
glanders  handling  hides  was  an  accident  within  the  meaning  of  an  acci- 
dent insurance  policy. 

Disease  Due   to   Traumatism   but    Without  Direct  External   Infection   or 

Contagion;    Tuberculosis. 

Where  a  workman  was  injured  by  an  explosion  and  he  contended 
that  the  injury  which  he  received  from  the  accident  was  responsible  for 
tuberculosis  which  he  subsequently  contracted,  it  was  held,  on  conflicting 
testimony,  that  the  workman  had  not  sustained  the  burden  of  showing 
that  the  tuberculosis  was  due  to  the  injury  received  from  the  accident. 
Compensation  was  awarded  for  the  direct  injuries  but  not  for  the  dis- 
ability due  to  the  tuberculosis.  Feldman  vs.  Westinghouse  Electric  and 
Min.  Co.,  Essex  Common  Pleas,  Jan.  1913;  36  N.  J.  Law  J.  48.  In  the 
last  mentioned  case  it  was  assumed  that  if  the  workman  could  have 
shown  that  the  tubercular  condition  was  due  to  the  injury  which  he  re- 
ceived that  he  would  have  been  entitled  to  have  received  compensation 
by  reason  of  the  disability  caused  by  the  tuberculosis. 

Apoplexy. 

A  workman,  in  the  course  of  his  ordinary  and  usual  employment, 
overexerted  himself  and  brought  on  an  attack  of  cerebral  hemmorrhage, 
and  it  was  held  that  the  occurrence  was  an  accident  within  the  meaning 
of  the  Act.  M'Innes  vs.  Dunsmuir  &  Jackson  (1908),  45  Scotch  L.  R. 
804;  1  B.  W.  C.  C.  226.  See  to  the  same  effect,  Martin  vs.  Travelers' 
Ins.  Co.,  1  F.  &  F.  505. 

Heart  Diseases. 

A  workman  who,  while  engaged  in  work  which  was  too  heavy  for 
him,  felt  a  sudden  pain  upon  his  chest  and  a  few  days  afterward  became 
totally  incapacitated.  On  an  application  for  compensation  the  arbitrator 
found  as  a  fact  that  the  cause  of  the  incapacity  was  a  cardiac  break- 
down, due  to  the  fact  that  the  work  in  which  the  workman  had  been  en- 
gaged was  too  heavy  for  him  and  that  he -was  not  injured  by  any  sudden 
jerk;  that  the  repeated  excessive  exertions  strained  the  workman's  heart 
until  it  was  finally  overstrained.  Under  the  circumstances,  it  was  held 


118  STATE  DEPARTMENT  OF  LABOR 

that  the  incapacity  was  not  due  to  a  personal  injury  by  accident  within 
the  meaning  of  the  Act.  Doe  vs.  Fife  Coal  Co.  (1909),  46  Scotch  L.  R. 
325;  2  B.  W.  C.  C.  8. 

A  workman  suffering  from  an  advanced  aneurism  of  the  aorta  was 
doing  his  work  in  the  ordinary  way  by  tightening  a  nut  with  a  spanner. 
This  ordinary  strain  caused  a  rupture  of  the  aneurism,  resulting  in  death. 
The  county  court  judge,  on  conflicting  evidence,  found  that  the  work- 
man's death  resulted  from  personal  "injury  by  accident  within  the  mean- 
ing of  the  Act.  It  was  held  in  the  House  of  Lords  that  there  was  evi- 
dence on  which  the  county  court  judge  was  justified  in  so  deciding. 
Clover  Clayton  &  Co.,  vs.  Hughes  (1910),  A.  C.  242;  3  B.  W.  C.  C.  275, 
affg  2  K.  B.  798;  2  B.  W.  C.  C.  15.  The  above-entitled  case  was  con- 
sidered at  great  length  in  the  various  opinions  written  in  the  House  of 
Lords.  Lord  Loreburn  wrote  the  principal  opinion,  and  in  the  course 
of  it  he  said:  '"In  this  case  a  workman,  suffering  from  an  aneurism  in 
so  advanced  a  state  of  disease  that  it  might  have  burst  at  any  time,  was 
tightening  a  nut  with  a  spanner,  when  the  strain,  quite  ordinary  in  this 
quite  ordinary  work,  ruptured  the  aneurism,  and  he  died.  This  is  a  mere 
summary  of  the  facts.  *  *  *  *  In  what  I  am  about  to  say  I  take 
the  facts  as  he  found  them  in  extenso  and  reply  upon  them.  *  *  *  * 
It  may  be  said,  and  was  said,  that  if  the  Acts  admits  of  a  claim  in  the 
present  case,  everyone  whose  disease  kills  him  while  he  is  at  work  will 
be  entitled  to  compensation.  I  do  not  think  so  and  for  this  reason:  It 
may  be  that  the  work  has  not,  as  a  matter  of  substance,  contributed  to  the 
accident,  though  in  fact  the  accident  happened  while  he  was  working. 
In  each  case  the  arbitrator  ought  to  consider  whether,  in  substance,  as 
far  as  he  can  judge  on  such  a  matter,  the  accident  came  from  the  disease 
alone,  so  that  whatever  the  man  had  been  doing  it  would  probably  have 
come  all  the  same,  or  whether  the  employment  contributed  to  it.  In  other 
words,  did  he  die  from  the  disease  alone  or  from  the  disease  and  employ- 
ment taken  together  looking  at  it  broadly?  Looking  at  it  broadly,  I  say, 
and  free  from  over  nice  conjectures:  Was  it  the  disease  that  did  it  or 
did  the  work  he  was  doing  help  in  any  material  degree?  In  the  present 
case  I  might  have  come  to  a  different  conclusion  on  the  facts  had  I  been 
arbitartor,  but  I  am  bound  by  the  findings,  if  there  was  evidence  to  sup- 
port them.  It  is  found  that  the  strain  contributed  to  the  death.  There 
was  evidence  on  which  the  learned  judge  was  entitled  so  to  find,  as  I 
respectfully  think,  and  I,  therefore,  advise  your  Lordships  to  affirm  the 
order  of  the  Court  of  Appeal."  There  were  two  dissenting  opinions  filed 
by  Lords  Arkinson  and  Shaw. 

A  foreman  carpenter  received  an  electric  shock  which  threw  him 
against  the  work  bench  with  such  violence  that  it  caused  a  sudden  and 
unusual  acceleration,  force  and  pressure  in  the  action  of  the  heart,  re- 
sulting in  paralysis,  and  it  was  held  that  this  was  a  personal  injury  within 
the  meaning  of  the  Massachusetts  Act.  Milliken  vs.  U.  S.  Fidelity  & 
Guar.  Co.,  Mass.  Indus.  Ace.  Bd.,  Rep.  Cas.,  p.  187. 

The  death  of  an  employe  having  chronic  valvular  disease  of  the  heart 
was  caused  by  the  shock  of  the  fall  of  a  heavy  wheel  upon  him,  and 


WORKMEN'S  COMPENSATION  LAW  119 

it  was  held  that  the  fatality  was  due  to  a  personal  injury  arising  out 
of  and  in  the  course  of  the  employment.  Welch  v.  Employers'  Liability 
Assurance  Corporation,  Mass.  Indus.  Ace.  Bd. 

Sprains,  Strains  and  Ruptures   (Hernia). 

An  internal  injury,  caused  to  a  person  in  a  normal  state  of  health, 
by  a  fortuitous  and  unforseen  event,  in  the  usual  course  of  his  business, 
is  an  accident.  So  held  in  a  case  where  a  workman,  while  lifting  a  heavy 
beam,  suddenly  tore  several  fibers  of  the  muscles  of  his  back.  Boardman 
vs.  Scott  &  Whitworth  (1901),  3  W.  C.  C.  22,  aff'd  (1901),  85  L.  T.  502; 
4  W.  C.  C.  1. 

A  man  was  employed  in  moving  heavy  planks  from  one  pile  to 
another.  During  the  night  the  planks  were  all  frozen  together  so  that 
there  was  some  difficulty  in  separating  them.  The  lower  planks  in  the 
pile  were  more  firmly  stuck  together  than  those  above,  but  the  man  was 
not  aware  of  this.  He  sustained  an  injury  owing  to  the  difficulty  of 
moving  one  of  the  lower  planks.  It  was  held  that  there  was  evidence  of 
an  accident.  Timmins  vs.  Leeds  Forge  Co.,  2  W.  C.  C.  10. 

A  workman  in  his  master's  field,  finding  that  the  grain  had  been 
trodden  down  by  bullocks,  stooped  to  raise  it  and  sprained  his  left  leg; 
or,  as  the  workman  explained  it,  "wrung  his  left  leg."  This  injury  subse- 
quently developed  into  traumatic  phlebitis  (inflammation  of  the  walls 
of  the  vinus  from  a  physical  injury)  and  it  was  held  that  this  was  a 
personal  injury  by  accident  within  the  meaning  of  the  Compensation 
Act.  Purse  vs.  Hayward  (1908),  1  B.  B.  C.  C.  216. 

A  carpenter  strained  himself  moving  a  heavy  radiator  and  was  after- 
wards operated  upon,  death  being  caused  by  appendicitis  and  intestinal 
obstruction  which  supervened.  It  was  held  that  this  was  an  injury  within 
the  meaning  of  the  Massachusetts  Act  and  the  widow  was  entitled  to 
compensation.  McGuigan  vs.  Maryland  Casualty  Co.,  Mass.  Indus.  Ace.  Bd. 

Compensation  was  granted  where  it  appeared  that  the  workman  had 
suffered  "severe  straining  of  lumbar  muscles  and  bruising  of  the  third 
and  fourth  vertebrae."  Gross  vs.  Marshall  Butters  Lumber  Co.,  Mich. 
Indus.  Accc.  Bd.,  Oct.  15,  1913;  The  Indicator,  Oct.  20,  1913,  at  page  417. 

A  workman,  rising  from  a  kneeling  position,  in  which  he  had  been 
at  work,  felt  a  pain  in  his  knee.  The  cartilage  was  found  to  be  ruptured. 
He  had  wrenched  his  knee  three  years  before,  and  had  been  incapacitated 
for  a  time,  but  had  thereafter  worked  without  difficulty  until  this  oc- 
casion, although  at  times  he  felt  pain  when  getting  up  from  kneeling. 
It  was  held  that  the  workman  had  suffered  injury  by  accident,  and  was 
entitled  to  compensation.  Borland  vs.  Watson,  Gow  &  Co.  (1911),  49 
Sec.  L.  R.  10;  5  B.  W.  C.  C.  514. 

A  workman  who  was  slightly  ruptured  at  the  time  he  entered  the 
employer's  service,  in  the  course  of  his  work  had  to  subject  himself  to 
an  unusual  though  not  to  a  unique  strain.  The  result  of  this  strain 
was  to  increase  the  rupture  and  incapacitate  the  workman  from  following 
his  employment.  It  was  held  that  although  from  a  purely  medical  or  surg- 
ical view,  the  injury  could  not  be  said  to  be  an  untoward  or  unexpected 


120  STATE  DEPARTMENT  OF  LABOR 

event,   it  was   nevertheless   an   accident  within   the  meaning   of  the   Act. 
Fulford  vs.  Northfleet  Coal  &  Ballast  Co.   (1907),  1  B.  W.  C.  C.  222. 

A  workman  who  ruptured  himself  while  lifting  some  planks  in  the 
usual  course  of  his  employment  was  held  to  have  suffered  an  injury  by 
accident.  Timmins  vs.  Leeds  Forge  Co.,  16  T.  L.  R.  521. 

Pneumonia  Following  Exposure  or  Traumatism. 

An  employe  got  his  feet  wet  i^  a  leaky  boat,  which  was  furnished 
by  his  employer,  and  pneumonia  developed  as  an  after-effect,  and  it  was 
held  that  this  was  a  personal  injury  under  the  Massachusetts  Act.  Stone 
vs.  Travelers  Insurance  Company,  Mass.  Indus.  Acct.  Bd. 

A  widow  of  an  employe  whose  death  was  caused  by  loba"r  pneumonia 
due  to  cold  and  exposure,  was  held  to  be  entitled  to  compensation  as  this 
was  an  injury  within  the  Massachusetts  Act.  Milliken  vs.  Travelers 
Insurance  Co.,  Mass.  Indus.  Ace.  Bd.  (Appeal  pending  to  Supreme  Judicial 
Court) . 

A  healthy  and  steady  workman  was  employed  to  pick  up  cotton 
waste  on  the  decks  of  a  ship  in  dock.  He  went  to  work  at  1  o'clock 
and  at  3  p.  m.  climbed  up  the  ladder  of  the  hold,  apparently  in  great 
pain,  and  he  was  sent  home.  He  received  medical  attention  and  marks 
were  found  on  his  ribs.  Three  days  later  he  developed  pneumonia  from 
which  he  died.  The  doctor  who  attended  him  attributed  the  pneumonia 
to  the  injury  to  his  sides.  It  was  held  that  there  was  evidence  that  the 
workman  had  died  from  personal  injury  by  accident  arising  out  of  and 
in  the  course  of  his  employment.  Lovelady  and  Others  vs.  Berrie  (1900), 
2  B.  W.  C.  C.  62. 

The  dependents  of  a  workman  who  died  of  pneumonia  contended  that 
the  pneumonia  resulted  from  lowered  vitality  caused  by  an  accident. 
The  only  evidence  that  there  had  been  an  accident  consisted  of  several 
inconsistent  statements  made  by  the  workman,  to  various  persons,  on 
the  day  after  the  alleged  accident,  which  were  admitted  without  objection 
being  taken.  The  medical  referee  gave  a  report  that  the  pneumonia  could 
not  have  been  caused  by  the  alleged  accident.  The  county  court  judge 
held  that  he  was  not  bound  to  surrender  his  judgment  to  the  medical 
referee,  and  held  that  there  had  been  an  accident  causing  the  pneumonia, 
and  so  he  awarded  compensation.  It  was  held  on  appeal  that  there  was 
no  evidence  that  there  had  been  an  accident  arising  out  of  and  in  the 
course  of  his  employment.  Langley  vs.  Reeve  (1910),  3  B.  W.  C.  C.  175. 

Lead  Poisoning. 

Acute  lead  poisoning  is  not  such  an  injury  as  entitles  an  employe 
to  compensation  under  the  Federal  Act.  Re  C.  L.  Schroeder,  Op.  Sol. 
Dep.  C.  &  L.  p.  172. 

Lead  poisoning  which  caused  the  loss  of  weight  and  other  symptoms 
culminating  in  a  condition  of  secondary  anemia,  which  brought  about 
inability  to  work,  was  held  to  be  a  personal  injury  within  the  meaning 
of  the  Massachusetts  Workmen's  Compensation  Act.  Johnson  vs.  London 
Guarantee  &  Accident  Co.,  Mass.  Indus.  Ace.  Bd.  (Appeal  pending  to 
Supreme  Judicial  Court.) 


WORKMEN'S  COMPENSATION  LAW  121 

"Sunstroke,"  "Heat  Stroke"  and  "Frostbite." 

A  fireman  on  board  ship  was  seen  frequently  drinking  water  while 
in  the  stoke  hole.  Soon  after  he  was  found  to  be  very  ill.  He  next  be- 
came unconscious  and  died.  No  post  mortem  was  held  and  the  medical 
evidence  as  to  the  cause  of  death  was  conflicting.  The  county  court  judge 
granted  compensation,  and  on  appeal  it  was  held  that  the  question  as  to 
whether  or  not  the  workman  did,  in  effect,  sustain  a  personal  injury  by 
accident,  arising  out  of  and  in  the  course  of  the  employment,  was  one 
of  the  fact  for  the  county  court  judge  to  decide.  Johnson  and  Others  vs. 
Owners  of  Ship  "Torrington"  (1909),  3  B.  W.  C.  C.  68. 

Drowning. 

An  employe,  a  boatman,  fell  overboard  and  was  drowned,  and  it 
was  held  that  this  was  a  personal  injury  entitling  the  widow  to  com- 
pensation. Booth  vs.  Aetna  Ins.  Life  Co.,  Mass.  Indus.  Ace.  Bd. 

Mental  Shock  or  Fright  and  Nervous  Troubles. 

A  workman  has  been  held  to  have  suffered  an  accidental  injury  by 
witnessing  the  effects  of  an  accident  to  a  fellow  workman  whereby  nervous 
shock  resulted.  Yates  vs.  South  Kirby  Featherstone  &  Hemsworth  Col- 
liers (1910),  103  L.  T.  170;  3  B.  W.  C.  418.  In  the  last-mentioned 
case  the  court  said:  "When  a  man  in  the  course  of  his  employment  goes 
to  a  place  and  sustains  a  nervous  shock  producing  physiological  injury, 
not  a  mere  transient  emotional  impulse,  it  is  an  accident  arising  out  of  and 
in  the  course  of  his  employment.  It  is  something  unexpected,  no  doubt, 
in  this  sense,  that  I  do  not  suppose  the  man  thought  for  a  moment  or 
knew  when  he  was  doing  what  was  plainly  his  duty  in  going  to  the 
rescue  of  the  other  party,  that  it  would  have  this  physiological  effect  on 
his  system.  It  had  that  effect.  There  was  no  malingering  here.  It  was 
a  perfectly  genuine  case.  Mr.  Simon  has  not  suggested  anything  to  the 
contrary;  and  I  should  not  myself.  I  think  this  is  a  case  which  falls 
within  the  Act  of  Parliament  on  the  same  principle  and  in  the  same  way 
as  if  the  man,  on  going  to  the  rescue  of  the  other  collier,  was  injured 
by  this  fall,  or  had  stumbled  or  fallen  on  his  way  there.  That,  undoubt- 
edly, would  have  been  a  case  within  the  Act,  and  I  can  see  no  real  difference 
in  principle  when  once  you  get  rid  of  the  danger  of  malingering,  between 
that  case  and  the  case  where  a  physiological  injury — physiological  damage 
— is  produced  by  reason  of  what  happened  to  this  man  when  he  went  in 
the  course  of  his  duty  to  the  neighboring  stall,  and  saw  what  had  hap- 
pened to  this  workman."  In  this  case  a  man,  while  at  work,  heard  an 
outcry  from  an  adjacent  chamber.  He  found  a  miner  severely  injured 
and  so  badly  wounded  that  he  died.  Subsequently  the  rescuer  alleged  that 
he  was  so  affected  by  the  appearance  of  peril  of  the  miner  that  he  was 
incapacitated  from  further  employment  and  this  was  held  to  be  a  personal 
injury  by  accident. 

Neurosis  following  an  injury  entitles  an  employe  to  compensation 
when  incapacity  for  work  is  due  to  the  neurosis.  Lata  vs.  American 
Mutual  Liability  Ins.  Co.,  Mass.  Indus.  Ace.  Bd. 


122  STATE  DEPARTMENT  OF  LABOR 

Compensation  was  denied  on  the  application  of  a  railway  conductor 
who  contended  that  he  had  suffered  a  nervous  breakdown  as  a  result 
of  the  employment  in  the  service  of  the  company.  Campbell  vs.  Detroit 
United  Railway,  Mich.  Indus.  Ace.  Bd.,  Oct.  15th,  1913;  The  Indicator, 
Oct.  20,  1913,  at  page  417. 

Employe's  Transportation  an  Incident  of  His  Employment. — In  the 
Donovan  case  the  employe,  in  accordance  with  his  usual  custom, 
was  riding  home  in  a  vehicle  furnished  by  his  employer,  when  he 
received  the  personal  injury  which  incapacitated  him.  The  Board  found 
that  such  transportation  was  incidental  to  his  employment,  and  the  Su- 
preme Judicial  Court  affirmed  the  finding. 

Father  totally  dependent  despite  the  fact  he  assisted  in  conducting 
unprofitable  business. — The  employe  contributed  all  of  his  earnings  to  his 
mother,  who  was  the  custodian  of  said  earnings  for  the  benefit  of  the 
family.  The  father,  an  invalid,  assisted  in  conducting  an  unprofitable 
store,  and  it  was  held,  in  De  Pasquale  vs.  Employers'  Liability  Assurancfe 
Corporation,  Ltd.,  that  he  was  wholly  dependent  upon  the  earnings  of 
the  deceased  employe  for  support. 

Dependent  daughter  physically  incapaciated  for  earning. — The  claim- 
ant, the  daughter  of  the  deceased  employe,  in  the  case  of  Carter  vs. 
Travelers  Insurance  Company,  lived  with  her  mother,  who  was  separated 
from  her  father,  and  all  her  support  came  from  her  father.  She  was 
in  poor  health  and  was  physically  incapacitated  for  earning.  Held,  that 
she  was  totally  dependent  upon  the  employe  for  support. 

One-eyed  employe  loses  vision  in  other  eye. — The  employe,  in  Morrison 
vs.  Fidelity  and  Casualty  Company  of  New  York,  received  a  personal 
injury  which  destroyed  the  vision  in  his  left  eye,  the  vision  in  right  eye 
having  been  destroyed  previously  by  reason  of  a  cataract.  Held,  that 
he  was  totally  incapacitated  for  work  because  of  the  injury. 

Incapacity  for  work  due  to  unreasonableness  of  employe  in  refusing 
to  permit  of  performance  of  operation. — The  employe,  in  Nicotero  vs. 
Globe  Indemnity  Company,  refused  to  permit  the  performance  of  an  oper- 
ation for  the  removal  of  the  affected  eye,  and  it  was  held  that  such  re- 
fusal was  unreasonable,  and  that  all  incapacity  for  work  was  due  to  his 
unreasonableness  and  not  to  the  injury. 

Employe  unable  to  perform  work  provided. — The  employe,  in  Krulla 
vs.  Casualty  Company  of  America,  was  furnished  certain  employment 
which  he  was  unable  to  perform,  and  was  thereafter  unable  to  obtain  any 
employment  which  he  could  perform,  because  of  the  incapacity  due  to 
the  injury.  Held,  that  he  was  entitled  to  compensation  on  account  of 
total  incapacity. 

Usual  degree  of  strain  causes  occupational  neurosis. — The  employe, 
in  the  case  of  Lee  vs.  Employers'  Liability  Assurance  Corporation,  Ltd., 
was  incapacitated  for  work  by  reason  of  a  condition  of  occupational  neur- 
osis, due  to  the  unusual  degree  of  strain  upon  certain  groups  of  muscles 
for  a  long  period  of  time  at  his  trade  of  cigar  maker.  Compensation 
was  awarded  for  the  incapacity  for  work  resulting  thereby. 


WORKMEN'S  COMPENSATION  LAW  123 

Fibroid  tuberculosis,  or  stone  grinder's  phthisis,  causes  death  of  em- 
ploye.— It  was  held  by  a  committee  of  arbitration,  in  the  case  of  Kalanquin 
vs.  Travelers  Insurance  Company,  that  the  occurrence  of  fibroid  tubercu- 
losis, or  "stone  grinder's  phthsis,"  by  reason  of  the  inhaling  of  small  par- 
ticles of  stone  and  dust,  is  a  personal  injury  arising  out  of  and  in  the 
course  of  the  employment. 

Hypostatic  pneumonia  follows  injury  and  operation. — The  employe,  in 
Cantwell  vs.  Travelers  Insurance  Company,  slipped  and  fell  while  em- 
ployed in  the  bottling  department  of  the  subscriber,  dislocating  the  clavicle. 
He  was  operated  upon  three  days  later,  and  died  of  hypostatic  pneumonia 
caused  by  the  weakening  of  his  system  by  reason  of  the  operation.  Held, 
that  his  widow  was  entitled  to  compensation. 

Injury  occurs  while  entering  place  of  employment. — In  the  case  of 
Driscoll  vs.  London  Guarantee  and  Accident  Company,  Ltd.,  it  was  held 
than  an  employe  who  was  required  to  use  the  flight  of  stairs  upon  which 
she  received  the  injury  in  order  to  enter  her  place  of  employment  was 
entitled  to  compensation. 

Lobar  pneumonia  follows  reduced  powers  of  resistance. — The  em- 
ploye, in  Merritt  vs.  Travelers  Insurance  Company,  died  from  lobar  pneu- 
monia, due  to  exhausted  vitality  and  reduced  powers  of  resistance,  follow- 
ing a  personal  injury  arising  out  of  and  in  the  course  of  his  employment, 
and  compensation  was  awarded  the  widow. 

Heart  lesion  grows  progressively  worse  dating  from  injury. — In 
O'Hare  vs.  Employers'  Liability  Assurance  Corporation,  Ltd.,  the  con- 
dition of  heart  lesion  grew  progressively  worse,  dating  from  and  by  rea- 
son of  the  occurrence  of  the  injury,  and  compensation  was  awarded. 

Traumatic  cataract  to  right  eye  sympathetically  affects  left  eye. — Com- 
pensation was  awarded,  in  Stachuse  vs.  Fidelity  and  Casualty  Company 
of  New  York,  because  of  the  sympathetic  affection  of  the  left  eye,  by 
reason  of  a  condition  of  traumatic  cataract  of  the  right  eye,  due  to  a 
personal  injury  arising  out  of  the  employment. 

Personal  injury  causes  nephritis  and  blindness. — It  was  held,  In 
Cooper  vs.  Massachusetts  Employers  Insurance  Association,  that  the  ne- 
phritis and  blindness  which  incapacitated  the  employe  were  caused  by 
the  injury  and  electrical  shock  which  he  received  while  performing  his 
work  for  the  subscriber. 

Tips  or  gratuities  are  earnings. — The  employe,  in  Hatchman  vs.  New 
England  Casualty  Company,  was  a  waiter,  and  received  in  addition  to 
his  wages  and  meals  certain  tips  or  gratuities  from  the  patrons  of  the 
hotel.  Held,  that  tips  or  gratuities  are  earnings,  and  that  employe's 
compensation  should  be  based  upon  all  his  earnings. 

Incapacity  due  to  compulsory  vaccination. — The  employe  was 'vac- 
cinated as  the  result  of  a  requirement  by  the  board  of  health,  in  the  fac- 
tory of  his  employer.  Infection,  followed  by  an  ulcer,  resulted  from  the 
vaccination,  and  the  employe  was  incapacitated  for  work  for  a  period 
of  nine  weeks.  Held,  in  Fewore  vs.  Employers'  Liability  Assurance  Cor- 
poration, Ltd.,  that  he  was  entitled  to  compensation. 


124  STATE  DEPARTMENT  OF  LABOR 

Compensation  due  under  statute  a  vested  interest. — The  dependent 
mother,  having  died  since  the  hearing  before  the  committee  of  arbitration, 
th  Board  held,  in  Murphy  vs.  Aetna  Life  Insurance  Company,  that  the  com- 
pensation due  her  under  the  statute  is  a  vested  interest  and  passes  to 
her  estate. 

Release  by  employe  does  not.deprive  widow  of  right  of  recovery  after 
death. — The  employe  in  the  Cripps-case  had  signed  a  release  in  consider- 
ation of  the  receipt  of  a  small  sum  of  money,  having  elected  to  take 
damages  from  the  independent  wrongdoer  rather  than  to  receive  com- 
pensation under  the  statute.  Later,  however,  complications  due  to  the 
original  injury  developed  and  he  died.  The  widow,  claiming  a  right  of 
recovery  independent  of  the  employer's  control,  asked  for  compensation  on 
account  of  his  death.  The  court  says: 

"The  statute  of  1911,  chapter  751,  is  not  penal,  but  is  based  on  the 
theory  of  compensation.  Primarily  its  object  is  to  provide,  in  place  of 
wages  which  he  can  no  longer  earn,  the  means  of  subsistence  for  the 
employe  injured  without  'serious  and  willful  misconduct'  on  his  part, 
if  he  survives,  or  for  the  widow,  and  other  dependents,  if  death  ensues 

either  with  or  without  conscious  suffering The  right  of  recovery 

expressly  given  to  his  widow  cannot  accrue  until  his  death.  Having  been 
created  for  her  benefit,  it  is  independent  of  his  control,  and  under  section 
22  can  be  discharged  only  by  herself  where  she  is  the  sole  dependent, 
or  by  those  authorized  to  act  in  her  behalf." 

Dependency  is  a  question  of  fact  unless  the  claimant  comes  within 
the  conclusive  presumption  clause. — The  court  held,  in  the  Gallagher  case, 
that  a  wife  who  was  living  apart  from  her  husband  at  the  time  of  his 
death  for  justifiable  cause,  and  who  had  endeavored  in  every  possible 
way  to  secure  the  support  to  which  she  was  entitled,  was  not  entitled  to 
be  "'conclusively  presumed  to  be  wholly  dependent"  upon  him  for  support, 
deciding  that,  under  such  circumstances,  dependency  is  a  question  of 
fact.  A  recent  amendment  to  the  act  gives  a  wife  who  lives  apart  for 
justifiable  cause  the  benefit  of  the  "conclusive  presumption"  clause. 

Lead  poisoning  by  absorption  a  "personal  injury" — The  employe,  in 
the  Johnson  case,  had  been  absorbing  lead  poisoning  during  his  occu- 
pation for  a  period  of  twenty  years,  eight  months  of  which  period  were 
within  the  time  that  the  Workmen's  Compensation  Act  was  effective. 
Finally,  he  became  incapacitated  for  work  by  reason  of  the  lead  poison- 
ing, and  it  was  held  to  be  a  "personal  injury"  under  the  act.  The  Su- 
preme Judicial  Court  held  that  the  Board  was  right  in  its  findings  that 
lea^  poisoning  was  a  "personal  injury;"  that  the  date  of  such  personal 
injury  was  the  day  upon  which  the  employe  first  became  incapacitated 
for  work;  and  that  said  personal  injury  arose  out  of  and  in  the  -course 
of  Johnson's  employment.  The  court  referred  to  its  decision  in  the  Hurle 
case  as  more  fully  covering  its  reasons  for  deciding  that  injuries  other 
than  by  visual  contact  or  direct  lesion  are  within  the  scope  of  the  com- 
pensation statute. 


WORKMEN'S  COMPENSATION  LAW  125 

Each  hand  should  be  considered  separately. — The  insurer  also  raised 
a  question  as  to  the  right  of  the  Board  to  award  specific  compensation 
for  each  hand  separately.  The  court  held,  however,  that  each  hand  should 
be  considered  separately,  and  the  specific  compensation  due  "in  addition 
to  all  other  compensation"  awarded  on  that  basis. 

Finding  that  normal  use  of  the  hand  was  wholly  gone  equivalent  to 
decision  that  hand  is  incapable  of  use. — Meley,  the  employe,  received  a 
serious  injury  to  the  right  hand  by  reason  of  which  that  member  was 
permanently  disabled;  also,  the  little  finger  of  the  left  hand  was  so  injured 
as  to  be  incapable  of  use.  The  Board  awarded  compensation  on  account 
of  total  incapacity  for  work,  and  also  ordered  the  insurer  to  pay  specific 
compensation  on  account  of  total  incapacity  for  work,  and  also  ordered 
the  insurer  to  pay  specific  compensation  for  sixty-two  additional  weeks, 
fifty  weeks  on  account  of  the  injury  to  the  right  hand  and  twelve  weeks 
because  of  the  incapacity  for  use  of  the  little  finger  of  the  left  hand. 

Injury  to  employe  while  engaged  in  performing  the  work  that  he 
was  hired  to  do  covered  by  the  statute. — The  court  held,  in  the  Howard 
case,  that  the  injury  to  the  employe,  who  was  engaged  in  trimming  a 
tree  on  church  property,  having  no  connection  with  the  work  of  the  sub- 
scriber, was  covered,  since  "Howard  was  employed  to  trim  trees,  and  was 
to  receive  his  orders  from  the  company  through  Kennedy.  It  was  no 
part  of  his  business  to  inquire  into  the  right  of  the  company  to  trim 
any  particular  tree.  He  was  to  receive  his  orders  from  Kennedy  and  to 
obey  them.  At  the  time  he  was  hurt  he  was  doing  what  he  had  been  hired 
to  do."  Kennedy,  the  foreman,  also  was  the  tree  warden  of  the  town 
of  Stoughton,  and  ordered  the  employe  to  trim  the  tree  upon  which  the 
injury  occurred.  The  insurer  claimed  such  employment  was  "casual" 
and  not  "in  the  usual  course  of  the  trade,  business,  profession  or  occu- 
pation" of  the  company. 

Death  results  from  the  Injury  when  Chain  of  Causation  is  not  broken 
by  a  New  Intervening  Act. — In  the  Burns  case  the  court  held  that  the 
death  of  the  employe  from  septicaemia  was  due  to  the  injury,  since  no 
new  intervening  cause  had  broken  the  chain  of  causation  connecting  the 
injury  with  death. 

Death  results  from  the  injury  when  chain  of  causation  is  not  broken 
by  a  new  intervening  act. — In  the  Burns  case  the  court  held  that  the 
death  of  the  employe  from  septicaemia  was  due  to  the  injury,  since  no 
new  intervening  cause  had  broken  the  chain  of  causation  connecting  the 
injury  with  death. 

Additional  compensation  for  specific  injury  ceases  at  death. — The 
employe,  in  the  Burns  case,  had  suffered  the  permanent  incapacity  of 
both  legs  by  reason  of  the  injury,  and  his  dependent  claimed  that  the 
"additional  compensation"  due  therefor  should  continue  until  the  end  of 
the  period  of  one  hundred  weeks,  as  provided  by  the  statute.  The  court 
held  that  "this  special  compensation  ceases  with  the  death  of  the  person 
injured,"  and  that  "it  is  a  right  perculiar  to  himself,  not  created  for  the 
benefit  of  his  dependents." 


126  STATE  DEPARTMENT  OF  LABOR 

Additional  compensation  on  account  of  specific  injuries  may  not  be 
deducted  when  death  ensues. — The  court  held,  in  the  Nicholas  case,  that 
the  "additional  compensation"  paid  the  employe,  before  death,  on  account 
of  the  specific  injury  to  the  third  finger  of  his  right  hand,  should  not  be 
deducted  from  the  compensation  awarded  his  widow. 

Serious  and  willful  misconduct  defined. — The  court,  in  the  Burns  case, 
defines  serious  and  willful  misconduct,  as  follows: 

Serious  and  willful  misconduct  is  much  more  than  mere  negligence, 
or  even  than  gross  or  culpable  negligence.  It  involves  conduct  of  a  quasi- 
criminal  nature, — the  intentional  doing  of  something  either  with  the 
knowledge  that  it  is  likely  to  result  in  serious  injury  or  with  a  wanton 
and  reckless  disregard  of  its  probable  consequences. 

Serious  and  willful  misconduct  by  employe  must  be  a  deliberate  act. — 
In  the  Nickerson  case  the  court  held,  with  the  Industrial  Accident  Board, 
that  his  decision  to  continue  his  work  as  a  whitewasher,  instead  of  waiting 
until  the  machinery  had  shut  down,  was  "more  like  a  sudden  thought  than 
a  wilful  act.  It  seems  that  it  should  fairly  be  regarded  as  a  minor  trans- 
gression, at  most,  from  his  standpoint,  and  not  as  'serious  and  willful 
misconduct.'"  The  court  adds: — 

"The  fact  that  the  injury  was  occasioned  by  the  employe's  disobedi- 
ence to  an  order  is  not  decisive  against  him.  To  have  this  effect,  the  dis- 
obedience must  have  been  wilful,  or,  as  was  said  by  Lord  Loreburn,  in 
Johnson  vs.  Marshall  Sons  &  Co.,  Ltd.  (1906),  A.  C.  409,  411,  'deliberate, 
not  merely  a  thoughtless  act  on  the  spur  of  the  moment'." 

Mother  and  sister  having  no  other  source  of  income  are  wholly  de- 
pendent upon  the  employe. — In  the  Caliendo  case  the  Supreme  Judicial 
Court  affirmed  the  findings  of  the  Board  by  which  total  dependency  com- 
pensation was  awarded  the  mother  and  sister  of  the  employe,  who  had 
no  other  source  of  income  except  his  earnings. 

Permanently  disabled  employe,  receiving  partial  compensation,  en- 
titled to  total  incapacity  compensation  during  shutdown  period. — The  court 
held,  in  the  Septimo  case,  that  the  employe  was  entitled  to  compensation 
on  the  basis  of  total  incapacity  for  work  during  a  certain  period  of  time, 
while  the  plant  in  which  he  had  been  furnished,  employment  was  shut 
down. 

Signing  of  settlement  receipt  does  not  bar  proceedings  by  employe  to 
determine  right  to  reimbursement  on  account  of  expenditure  for  medical 
services. — The  insurer  objected  to  the  taking  of  jurisdiction  by  a  com- 
mittee of  arbitration  in  the  case  of  Ducy  vs.  American  Mutual  Liability 
Insurance  Company,  claiming  that  the  signing  of  a  settlement  receipt  by 
him  acted  as  a  bar  to  proceedings  to  determine  his  right  to  obtain  payment 
of  the  amount  expended  for  medical  services  under  the  statute.  The  com- 
mittee ruled  that  it  had  jurisdiction,  and  awarded  the  employe  the  sum 
of  $18  to  cover  his  expenditure  for  medical  services  under  the  statute, 

Insurer  question  right  to  reopen  case  after  approval  of  settlement 
receipt. — It  was  held,  in  Jones  vs.  Fidelity  and  Deposit  Company  of  Mary- 


WORKMEN'S  COMPENSATION  LAW  127 

land,  that  the  right  of  an  employe  to  further  compensation  was  not  "barred 
by  the  signing  of  a  settlement  receipt,  if  there  was  evidence  of  a  re- 
currence of  incapacity  for  work  by  reason  of  the  injury. 

Additional  compensation  on  account  of  specific  injuries  may  not  be 
deducted  when  death  ensues. — The  court  held,  in  the  Nichols  case,  that 
the  "additional  compensation"  paid  the  employe,  before  death,  on  account, 
of  the  specific  injury  to  the  third  finger  of  his  right  hand,  should  not  be 
deducted  from  the  compensation  awarded  his  widow. 

The  language  of  the  court,  in  connection  with  the  Nicholas  case,  is 
significant: — 

"The  statute  not  having  been  designed  to  promote  but  to  decrease 
the  opportunity  for  unnecessary  litigation,  its  purpose  will  be  best  sub- 
served if  plain  words  are  given  their  ordinary  signification;  and  no  pro- 
vision being  found  in  section  6  for  any  deduction  of  this  amount,  the 
widow  as  the  sole  dependent  is  entitled  to  compensation  from  the  date 
of  the  accident." 

S.   W.  Rep.  912;  000  Tex.  Civ.  App.  000. 

A  woman,  part  of  whose  work  was  to  clean  certain  machinery  in  a 
factory,  finding  the  guard  removed  from  another  part  of  the  machinery 
which  it  was  not  her  duty  to  touch,  proceeded  to  clean  it.  While  she  was 
cleaning  it  the  machinery  started,  and  she  was  injured.  It  was  held 
that  the  accident  arose  out  of  the  employment  and  compensation  was 
awarded.  Greer  vs.  Lindsay  Thompson  (1912),  46  Ir.  L.  T.  89;  5  B.  W. 
C.  C.  586. 

Where  an  agent  having  sole  charge  of  the  preparation  and  exhibition 
of  cumbersome  and  complicated  machinery  calls  to  his  assistance  one 
who  in  good  faith  enters  upon  such  work,  the  person  so  employed  is  not 
a  volunteer  or  trespasser,  but  for  the  time  being  assumes  the  relation 
of  master  and  servant.  (EL.)  Maxson  vs.  J.  I.  Case  Threshing  Machine 
Co.,  116  N."  Rep.  281;  81  Nebr.  546. 

Where  blasting  could  not  be  safely  done  in  a  mine  while  mining  was 
in  progress,  and  it  was  the  custom,  when  a  miner  left  before  quitting 
time,  for  his  mate  to  fire  off  his  blast,  it  was  held  that  the  plaintiff  was 
not  a  volunteer  in  firing  the  blast  of  his  fellow  miner,  according  to  such 
custom.  (E.  L.)  McHenry  Coal  Co.  vs.  Render,  104  S.  W.  Rep.  99G; 
31  Ky.  Law  Rep.  1274.  A  miner  who  is  directed  to  assist  the  operator 
of  a  trip  hammer  is  not  a  mere  volunteer  in  assisting  the  operator  to 
remove  a  die.  (E.  L.)  B.  F.  Avery  &  Sons  vs.  Cottrill's  Guardian,  107 
S.  W.  Rep.  332 ;  32  Ky.  Law  -Rep.  914.  A  person  employed  by  a  purchaser 
of  motors  to  inspect  them  before  acceptance,  who  assisted  the  seller's 
employe  in  making  a  test,  was  not  a  mere  volunteer.  (E.  L.)  Johnson 
vs.  E.  C.  Clark  Motor  Co.,  139  N.  W.  Rep.  30;  173  Mich.  277. 

Volunteers:  Acting  Without  Scope  of  Authority. 

Where  the  plaintiff,  a  boy  of  sixteen,  employed  to  remove  material 
from  a  planing  machine,  volunteered,  without  suggestion  or  leave  from 
anyone,  to  oil  the  machine,  and  he  had  been  warned  that  it  was  danger- 


128  STATE  DEPARTMENT  OF  LABOR 

ous  to  do  so,  it  was  held  that  the  master  was  not  liable  to  him  for  an 
injury  received  while  thus  engaged.  (E.  L.)  Floyd  vs.  Kentucky  Lumber 
Co.,  66  S.  W.  Rep.  501;  23  Ky.  Law  Rep.  1914. 

Whatever  a  workman  does  under  competent  authority  for  the  com- 
fort and  convenience  of  his  fellow  workmen  is  presumed  to  be  for  his 
employer's  benefit,  where  such  work  is  not  so  foreign  to  his  employment 
that  he  would  be  justified  in  refusing  to  do  it.  (E.  L.)  Broderick  vs. 
Detroit  Union  R.  Station  &  Depot  "Co.,  22  N.  W.  Rep.  802 ;  56  Mich.  261. 
It  is  not  always  essential  that  an  employe  actually  be  engaged  in  per- 
forming specific  duties  in  order  to  make  applicable  rules  of  law  determin- 
ing his  rights  and  his  employer's  liabilities,  when  he  is  injured  while 
actually  engaged  in  the  performance  of  his  duties.  (E.  L.)  Louisville 
&  Nashville  R.  R.  Co.  vs.  Chamblee,  54  So.  R.  681;  000  Ala.  000.  The 
scope  of  a  servant's  duties  is  determined  by  what  he  was  employed  to 
do  and  what  he  actually  did  with  his  employers'  knowledge  and  consent, 
and  an  employe  who  was  performing  the  same  services  he  was  in  the 
habit  of  performing  when  he  was  injured,  is  not  a  volunteeer  in  perform- 
ing such  duties.  (E.  L.)  Dixon  vs.  Chiquola  Mfg.  Co.,  68  S.  E.  Rep.  643; 
86  S.  C.  435.  A  workman  who,  under  orders  of  his  superior,  engages  in 
some  other  than  his  regular  employment,  is  not,  on  that  ground,  deemed 
to  be  a  volunteer,  to  whom  the  duty  of  exercising  reasonable  care  is  not 
owing.  (E.  L.)  Laragay  vs.  East  Jersey  Pipe  Co.,  72  Atl.  Rep.  57;  000 
N.  J.  Law  000;  rev'g,  68  Atl.  Rep.  1073;  000  N.  J.  Law  000.  Where  the 
servant  acts  in  obedience  to  an  express  order  of  the  master,  the  master 
cannot  escape  liability  for  the  consequences  of  the  servant's  acts,  on  the 
ground  that  they  were  outside  the  duty  for  which  he  was  employed. 
(E.  L.)  Rimmer  vs.  Wilson,  93  Pac.  Rep.  1110;  000  Col.  000.  An  employe 
who  obeys  the  order  of  the  manager  of  his  employer  and  does  necessary 
work  in  defendant's  service,  can  not  be  considered  in  a  legal  sense  as  one 
engaged  in  work  beyond  the  scope  of  his  employment.  (E.  L.)  Bonnin 
vs.  Town  of  Crowley,  36  So.  Rep.  842;  112  La.  1025. 

An  injury  received  by  a  servant  in  attempting  to  procure  a  tool  neces- 
sary in  his  work,  is  in  the  line  of  his  employment.  (E.  L.)  Conley  vs. 
Lincoln  Foundry  Co.,  14  Pa.  Sup.  Ct.  626. 

An  employe  engaged  as  a  planer  in  a  saw  mill  was  held  to  be  in  the 
discharge  of  his  duty  when  the  machine  was  stopped  by  a  board  and  he 
stepped  to  one  side  of  it  to  ascertain  the  cause  of  the  difficulty  and 
stepped  into  a  hole  in  the  floor.  (E.  L.)  Baker  vs.  Duwamish  Mill  Co., 
86  Pax.  Rep.  167;  43  Wash.  149. 

Where  a  master  divided  his  business  into  departments  and  required 
employes  idle  in  their  own  departments  to  help  in  some  other  department, 
and  the  foreman  of  a  department  received  an  employe  of  another  depart- 
ment and  accepted  his  services  and  directed  him,  it  was  held  that  the 
employe  was  not  a  volunteer,  but  was  engaged  in  the  performance  of  his 
duties.  (E.  L.)  Hugo,  Schmeltzer  &  Co.  vs.  Paiz,  128. 

A  freight  conductor,  on  reaching,  late  at  night,  a  station  situated  one 
mile  from  a  trestle,  was  informed  by  the  road  superintendent  that,  owing 
to  a  heavy  rain,  it  was  likely  that  two  culverts  would  be  in  a  dangerous 


WORKMEN'S  COMPENSATION  LAW  129 

condition,  one  of  which  was  half  way  between  the  station  and  the  trestle, 
and  the  other  beyond  the  trestle,  but  nothing  was  said  about  the  trestle. 
The  conductor  detached  the  engine  and  with  the  engineer,  fireman,  one 
brakeman  and  the  road  superintendent,  started  to  examine  the  culverts. 
The  first  was  found  to  be  all  right,  when  they  proceeded  to  the  second, 
and  on  attempting  to  cross  the  trestle,  it  gave  way,  and  the  conductor 
was  killed.  It  was  held  that  considering  the  emergency  and  that  the 
conductor  was  exercising  such  ordinary  care  as  was  necessary  for  the 
safe  movement  of  the  train,  he  was  acting  within  the  scope  of  his  em- 
ployment. (E.  L.)  Terre  Haute  &  I.  R.  Co.  vs.  Fowler,  56  N.  E.  Rep. 
228;  154  Ind.  682;  48  L.  R.  A.  531. 

The  Factory  Act  of  Kansas  (Laws  1903,  ch.  356,  sec.  4),  providing 
that  every  person  owning  or  operating  any  manufacturing  establishment 
in  which  machinery  is  used,  shall  furnish  and  supply  for  use  therein 
certain  specified  safeguards  for  machinery  and  appliances,  is  not  limited 
in  application  to  workmen  engaged  in  their  ordinary  duties,  but  is  desig- 
nated to  protect  persons  employed  in  manufacturing  establishments  while 
in  the  performance  of  any  duty,  whether  ordinary  and  general,  or  ex- 
ceptional and  occasional.  (E.  L.)  Caspar  vs.  Lewin,  109  Pac.  R.  657; 
82  Kans.  604. 

Where  a  logging  company  also  ran  a  railroad,  and  the  plaintiff,  an 
employe  of  the  company,  was  directed  to  act  as  a  brakeman  on  the  rail- 
road, it  was  held  that  he  was  an  employe  of  both  the  railroad  and  the 
logging  company,  as  respects  injuries  he  received  while  acting  as  such 
brakeman.  (E.  L.)  Barrow  vs.  B.  R.  Lewis  Lumber  Co.,  95  Pac.  Rep. 
682;  14  Idaho,  698. 

While  resting,  under  a  rule  permitting  him  to  do  so,  an  employe  may 
not  needlessly  wander  from  the  proper  sphere  of  his  work  into  other 
departments  of  the  establishment  and  be  within  the  scope  of  his  employ- 
ment. But  if  no  resting  place  is  prescribed  and  no  boundaries  fixed,  he 
may  use  his  discretion  in  selecting  a  place  to  rest  and  may  with  due 
circumspection  occupy  any  of  the  vacant  places  near  his  machine  and 
in  touch  with  his  work.  (E.  L.)  Pittsburg  Vitrified  Pav.  &  Build.  Brick 
Co.  vs.  Fisher,  100  Pac.  Rep.  507;  79  Kan.  576. 

Serious  and   Wilful  Misconduct:  Intoxication. 

A  workman  was  employed  to  oil  machinery  and  was  strictly  forbidden 
to  oil  it  when  it  was  in  motion.  He  had  been  seen  to  do  so,  and  warned 
against  the  practice.  He  did  so  again  and  received  injuries  from  which 
he  died.  It  was  held  that  the  accident  arose  out  of  the  employment  and 
compensation  was  awarded.  Mawdsley  vs.  West  Leigh  Colliery  Co.  (1911) 
5  B.  W.  C.  C.  80.  The  decision  in  the  last-mentioned  case  was  on  the 
ground  that,  as  the  accident  resulting  in  death,  the  provisions  of  the 
amended  British  Act  relating  to  serious  and  wilful  misconduct  did  not 
apply. 

In  the  expression  "serious  and  wilful  misconduct,"  the  word  "serious" 
applies  to  the  misconduct  itself  and  not  to  the  actual  consequence  of  it; 
and  the  word  "wilful"  imports  that  the  conduct  was  deliberate  and  not 


130  STATE  DEPARTMENT  OF  LABOR 

merely  a  thoughtless  act  on  the  spur  of  the  moment.  Johnson  vs.  Marshall, 
Sons  &  Co.  (1906),  94  L  .T.  828;  8  W.  C.  C.  10. 

Proof  of  negligence  merely  is  not  sufficient  to  maintain  a  charge  of 
serious  and  wilful  misconduct.  Rees  v.  Powell  Duffryn  Steam  Coal  Co. 
(1900),  4  W.  C.  C.  17.  A  boy  working  at  a  machine  used  for  cutting 
screws  leaned  over  a  circular  saw  which  was  in  motion,  to  pick  up  an 
uncut  screw  which  had  fallen  from  its  place  and  in  doing  so  injured  his 
finger.  He  had  been  told  frequently  not  to  put  his  hand  across  the  saw. 
It  was  held  that  there  was  evidence  of  negligence,  but  not  of  serious  or 
wilful  misconduct  which  would  preclude  the  boy  from  recovering  com- 
pensation. Reeks  vs.  Kynock  (1901),  4  W.  C.  C.  14. 

If  a  workman  unnecessarily  breaks  an  express  and  emphasized  order 
made  solely  for  his  own  protection,  and  which  he  fully  understands  and 
appreciates,  he  is  guilty  of  serious  and  wilful  misconduct.  Jones  vs. 
London  &  South  Western  Ry.  Co.  (1901),  3  W.  C.  C.  46.  Deliberate  and 
intentional  disobedience  on  the  part  of  a  workman  to  an  oft-repeated 
order  whereby  he  and  his  fellow  workmen  are  placed  in  danger,  is  serious 
and  wilful  misconduct.  It  is  no  answer  to  this  defense  that  the  workman 
believed  the  course  he  was  adopting  when  disobeying  his  instructions 
was  not  a  dangerous  one.  Brooker  vs.  Warren  (1907),  23  T.  L.  R.  201; 
9  W.  C.  C.  26.  In  the  last-mentioned  case  a  fatal  accident  was  caused 
by  the  act  of  the  deceased  in  removing  a  guard  from  a  circular  saw. 
Compensation  was  refused. 

A  workman  was  cautioned  by  a  foreman  not  to  use  a  freight  elevator 
until  he  was  acquainted  with  it.  He,  nevertheless,  attempted  to  use  it 
and  later  in  the  day  was  found  dead,  jammed  between  the  side  of  the 
elevator  and  the  floor.  There  was  no  evidence  that  he  had  not  been  in- 
structed in  the  use  of  the  elevator  and  that  he  had  not  had  an  opportunity 
of  becoming  acquainted  with  it.  It  was  held  that  the  employers  had  not 
discharged  the  onus  resting  upon  them  to  show  that  the  deceased  had 
been  guilty  of  serious  or  wilful  misconduct,  and  therefore  compensation 
was  awarded.  Granick  vs.  British  Columbia  Sugar  Refinery  Co.  (1910), 
15  B.  C.  R.  193;  4  B.  W.  C.  C.  452,  rev'g  (1909),  14  B.  C.  R.  251;  2  B.  W. 
C.  C.  511. 


WORKMEN'S  COMPENSATION  LAW  131 


Death  Benefit  and  Methods  of  Procedure 

Under  the  provisions  of  the  Nebraska  compensation  law  if  the  de- 
ceased employe  leaves  one  or  more  dependents  wholly  dependent  upon 
his  earnings  for  support  at  the  time  of  the  accident  causing  death, 
the  compensation  shall  be  50  per  cent  of  the  wages  received  at  the  time  of 
the  injury,  subject  to  a  minimum  of  $5  per  week  and  a  maximum  of  $10 
per  week,  for  a  period  not  to  exceed  350  weeks  from  the  date  of  the  acci- 
dent causing  the  injury.  These  several  weekly  payments  may  be  com- 
muted to  one  or  more  lump  sum  payments  if  the  district  court  so  orders. 
If  the  district  court  declines  to  direct  the  several  weekly  payments  to  be 
commuted  to  one  or  more  lump  sum  payment,  then  the  dependents  shall 
receive  the  amount  of  compensation  due  them  in  weekly  payments  con- 
tinuing over  a  period  of  350  weeks,  or  practically  seven  years.  If  the 
employer  has  carried  his  own  risks  under  the  law,  then  the  question  of 
the  solvency  of  the  employer  during  the  period  for  which  he  is  to  pay  com- 
pensation is  a  matter  in  which  the  dependents  are  vitally  interested.  The 
same  would  be  true  of  an  insurance  company  carrying  the  risk.  It  is  the 
purpose  of  the  compensation  law  that  the  compensation  shall  be  payable 
as  wages,  and  in  this  manner  liability  for  compensation  is  incurred.  In 
order  to  protect  the  dependents  against  the  possible  insolvency  of  the  em- 
ployer or  the  insurance  company  during  the  larger  period  of  time,  and 
at  the  same  time  more  fully  carry  out  the  intent  and  purpose  of  the  law, 
the  following  amendment  is  suggested  to  the  compensation  law: 

Sec.  — .  Where  payment  of  the  compensation  in  the  event  of  death 
is  made  to  dependents,  the  payment  shall  be  made  in  weekly  installments 
corresponding  in  amount  to  the  weekly  earnings  of  the  employe,  subject 
to  a  maximum  of  $20  per  week.  The  total  number  of  payments  may  be 
commuted  to  one  or  more  lump  sum  payments  by  the  district  court  upon 
the  application  of  either  party. 

This  does  not  mean  a  greater  liability  on  the  part  of  the  employer; 
it  merely  shortens  the  period  within  which  the  total  indemnity  becomes 
payable  by  reason  of  the  increase  in  the  amount  of  the  weekly  com- 
pensation payments. 

There  is  produced  below  the  various  sections  of  the  law  having  to  do 
with  the  methods  of  procedure  in  litigating  claims  under  the  compensa- 
tion law.  That  a  system  of  negotiation  has  been  substituted  for  the  old 
method  of  litigation  is  apparent,  and  will  be  the  case  until  some  adequate 
method  of  administration  is  provided: 

Sec.  128. — In  case  of  a  dispute  over,  or  failure  to  agree  upon  a  claim 
for  compensation  between  employer  and  employe,  or  the  dependents  of 
the  employe,  the  claim  may  be  submitted  to  arbitration  in  such  manner 


132  STATE  DEPARTMENT  OF  LABOR 

or  method  as  may  be  mutually  agreed  upon,  or  either  party  may  submit 
the  claim,  both  as  to  the  question  of  fact,  the  nature  and  effect  of  the 
injuries,  and  the  amount  of  compensation  therefor,  according  to  the  sched- 
ule herein  provided,  to  the  district  court  of  the  county  which  would  have 
jurisdiction  of  a  civil  action  between  the  parties,  which  court  shall  have 
authority  to  hear  and  determine  the  cause  as  a  suit  in  equity  and  enter 
final  judgment  therein  determining  all  questions  of  law  and  fact  in  ac- 
cordance with  the  provisions  of  this 'article,  which  judgment  shall  be  final 
and  conclusive  unless  reversed  or  modified  on  appeal  or  otherwise  modified 
pursuant  to  the  provisions  of  this  article. 

Sec.  130. — Procedure  in  cases  of  dispute  shall  be  as  follows:  Either 
party  may  file  in  the  district  court  a  verified  petition  setting  forth  the 
names  and  residences  of  the  parties  and  the  facts  relating  to  the  employ- 
ment at  the  time  of  the  injury,  the  injury  in  its  extent  and  character,  the 
amount  of  wages  being  received  at  the  time  of  injury,  the  knowledge  of 
or  notice  to  the  employer  of  the  occurrence  of  said  injury  and  such  other 
facts  as  may  be  necessary  for  the  information  of  the  court,  and  also 
stating  the  matter  or  matters  in  dispute  and  the  contention  of  the  pe- 
titioner with  reference  thereto. 

Upon  the  filing  of  such  petition  a  summons  shall  issue  and  be  served 
upon  the  adverse  party,  as  in  civil  causes,  together  with  a  copy  of  the 
petition.  Return  of  service  shall  be  made  within  four  days  from  the  is- 
suance of  the  summons.  Within  seven  days  after  the  return  of  such 
summons,  the  party  upon  whom  the  same  is  served  shall  file  an  answer  to 
said  petition,  which  shall  admit  or  deny  the  substantial  averments  of  the 
petition,  and  shall  state  the  contention  of  the  defendant  with  reference 
to  the  matters  in  dispute,  as  disclosed  by  the  petition.  The  answer  shall 
be  verified  in  like  manner  as  required  for  a  petition.  At  the  expiration 
of  the  time  fixed  for  filing  answer  the  court  shall  proceed  to  hear  and 
determine  the  cause  without  delay  and  from  such  judgment  shall  ba 
prosecuted  in  accordance  with  the  general  laws  of  the  state  regulating 
appeals  and  actions  at  law  except  that  such  appeal  shall  be  perfected 
within  thirty  days  from  the  entry  of  the  judgment  and  the  cause  shall 
be  advanced  for  hearing  in  the  supreme  court  so  as  to  bring  said  cause 
on  for  argument  before  such  court  within  sixty  days  from  the  filing  of 
the  appeal;  and  said  supreme  court  shall  render  its  judgment  and  opinion 
in  such  cases  within  thirty  days  after  submission. 

Sec.  131. — The  amounts  of  compensation  payable  periodically  under 
the  law,  either  by  agreement  of  the  parties,  or  by  decision  of  the.  court, 
may  be  commuted  to  one  or  more  lump  sum  payments,  except  compensa- 
tion due  for  death  and  permanent  disability.  These  may  be  commuted 
only  with  the  consent  of  the  district  court. 

Sec.  132. — All  settlements  by  agreement  of  the  parties  and  all  awards 
of  compensation  made  by  the  court,  except  those  amounts  payable  peri- 
odically for  six  months  or  more,  shall  be  final  and  not  subject  to  read- 
justment. 

Sec.  133. — All  amounts  paid  by  an  employer  or  an  insurance  company 


WORKMEN'S  COMPENSATION  LAW  133 

carrying  such  risk,  as  the  case  may  be,"  and  received  by  the  employe 
or  by  his  dependents,  by  lump  sum  payments,  shall  be  final,  but  the  amount 
of  any  agreement  or  award  payable  periodically  for  more  than  six  months 
may  be  modified  as  follows: 

(a)  At  any  time  by  agreement  of  the  parties; 

(b)  If  the  parties  cannot  agree,  then  at  any  time  after  six  months 
from  the  date  of  the  agreement  or  award,  an  application  may  be  made 
to  the  court  by  either  party  on  the  ground  of  increase  or  decrease  or  in- 
capacity due  solely  to  the  injury,  or  that  the  condition  of  a  dependent  has 
changed  as  to  the  age  or  marriage,  or  by  reason  of  the  death  of  a  depend- 
ent.    In  such  cases  the  same  procedure  shall  be  followed  as  in  section 
130  of  this  chapter  in  case  of  disputed  claim  for  compensation. 

Sec.  134. — At  any  time  after  the  amount  of  any  award  has  been 
agreed  upon  by  the  parties,  or  found  and  ordered  by  the  court,  a  sum 
equal  to  the  present  value  of  all  future  installments  of  compensation  may 
(where  death  or  the  nature  of  the  injury  renders  the  amount  of  future 
payments  certain)  by  leave  of  court,  be  paid  by  the  employer  or  by  the 
insurance  company  carrying  such  risk,  as  the  case  may  be,  to  any  savings 
bank  or  trust  company  of  this  state,  in  good  standing,  and  such  sum 
together  with  all  interest  thereon,  shall  thereafter  be  held  in  trust  for 
the  employe  or  the  dependents  of  the  employe  who  shall  have  no  furthr 
recourse  against  the  employer.  The  payment  of  such  sum  by  the  em- 
ployer, evidenced  by  the  receipt  of  the  trustee  to  be  filed  with  the  insur- 
ance commissioner,  shall  operate  as  a  satisfaction  of  said  award  as  to  the 
employer.  Payments  from  said  fund  shall  be  made  by  the  trustee  in  the 
same  amounts  and  at  the  same  time  as  are  herein  required  of  the  employer 
until  said  fund  and  interest  shall  be  exhausted.  In  the  appointment  of 
the  trustee,  preference  shall  be  given,  in  the  discretion  of  the  court,  to 
the  choice  of  the  injured  employe  or  the  dependents  of  the  deceased  em- 
ploye, as  the  case  may  be. 

Sec.  135. — In  case  of  death,  where  no  executor  or  administrator  is 
qualified,  the  said  court  shall,  by  order,  direct  payment  to  be  made  to 
such  persons  as  would  be  appointed  administrator  of  the  estate  of  such 
decedent,  upon  like  terms  as  to  bond  for  the  proper  application  of  com- 
pensation payments  as  are  required  of  administrators. 


WORKMEN'S  COMPENSATION  LAW  135 


To  Whom  the  Law  Applies 


The  law  will  apply  to  every  employer  in  this  state  employing  five  or 
more  employes,  except  those  employing  household  domestic  servants, 
farm  laborers  and  railroad  companies  doing  interstate  commerce,  who  are 
subject  to  Congress  and  not  within  the  provisions  of  this  law.  However, 
other  employers  and  employes  not  included  in  this  act  may  be  their  joint 
election,  file  with  the  Insurance  Commissioner,  and  accept  the  provisions 
of  Part  II. 

Part  I  is  so  framed  as  to  penalize  both  the  employer  and  employe 
if  they  do  not  elect  to  remain  within  the  provision  of  Part  II,  as  follows: 
If  an  employer  is  sued  for  damages  he  can  not  avail  himself  of  the  de- 
fenses of  assumption  of  risk,  fellow  servant  doctrine,  contributory  negli- 
gence, which  means  the  loss  of  the  old  time  common  law  defenses.  Should 
an  employe  elect  for  litigation  as  against  compensation  the  employer 
can  use  these  three  defenses  when  suit  is  brought  against  him,  and  all 
actions  at  law  brought  under  Part  I  of  this  act,  the  burden  of  proof  to 
establish  wilful  negligence  of  the  injured  employe  shall  be  on  the  de- 
fendant 

Part  II.  Every  employer  (other  than  those  exempted)  automatically 
comes  within  the  provisions  of  the  Workmen's  Compensation  Law  and  will 
be  governed  by  its  provisions  unless  the  employer  posts,  and  thereafter 
keeps  posted,  in  a  conspicuous  place  about  the  place  or  places  where  his 
workmen  are  employed,  a  written  or  printed  notice  of  his  election  not  to 
be  bound  by  Part  II,  and  he  must  file  a  duplicate  of  such  posted  notice 
with  the  Insurance  Commissioner,  and  unless  every  employe  gives  a  writ- 
ten or  printed  notice  to  his  employer  of  his  refusal  to  be  bound  by  Part 
II  and  files  a  duplicate  proof  of  the  services  of  such  notice,  with  the 
Insurance  Commissioner,  he  will  automatically  come  within  the  provisions 
of  the  law,  and  be  governed  by  its  provisions. 

If  an  employer  has  given  notice  not  to  accept  the  provisions  of  Part 
II  he  may  later  waive  such  notice  by  posting  in  a  conspicuous  place  a 
written  or  printed  notice  of  withdrawal  and  file  a  duplicate  notice  with 
the  Insurance  Commissioner. 

If  an  employe  has  given  notice  not  to  accept  the  provisions  of  Part 
II,  he  may  later  waive  such  notice  by  a  notice  in  writing  directed  to  the 
employer  and  serve  same  upon  his  employer  or  his  agent,  and  file  a  dupli- 
cate with  the  Insurance  Commissioner.  The  waiver  will  not  be  effective 
until  noon  of  the  fifth  day  after  filing  the  required  notice  with  the  Insur- 
ance Commissioner. 

Printed  blank  forms  for  making  the  elections  under  the  law  will 
be  furnished  by  the  Commissioner  of  Insurance  or  the  State  Department 
of  Labor  upon  application.  The  following  forms  have  been  approved  by 
the  attorney  general  for  use  in  the  administration  of  the  compensation 
law: 


136  STATE  DEPARTMENT  OF  LABOR 

Employer's  Notice  of  Acceptance 

To  the  Employes  of  the  Undersigned,  and  the  Nebraska  Commissioner  of  Insurance: 

You  and  each  of  you  are  hereby  notified  that  the  undersigned  elects  to  accept 
the  terms,  conditions  and  provisions  to  provide,  secure  and  pay  compensation  to 
employes  of  ithe  undersigned  for  injuries  received  as  provided  in  the  act  of  the 
Thirty-third  session  of  the  Nebraska  legislature,  known  as  "The  AVorkmen's  Com- 
pensation Law  of  1913."  approved  April  13.  1913.  and  effective  December  1,  1914, 
and  acts  amendatory  thereof,  and  that  the  undersigned  elects  to  pay  damages  for 
personal  injuries  received  by  such  employe  under  the  terms,  conditions  and  pro- 
visions of  said  "Workmen's  Compensation  Law  of  1913,"  and  acts  amendatory 
thereof. 


STATE   OF  NEBRASKA  ~] 

r 

County   of J 

The   undersigned   being   duly   sworn    deposes   and    says   that   a   true,    correct   andg 
verbatim  copy  of  the  foregoing  notice  was  on  the day  of 191 , 

Posted  at 

(state  where  posted) 

Subscriber    and    sworn    to    before    me    by 

this day  of 191 


(SEAL)  Notary   Public. 

\ 

Employe's  Notice  of  Acceptance 

To  the  Employer  of  the  Undersigned,  and  the  Nebraska  Commissioner  of  Insurance: 

You  and  each  of  you  are  hereby  notified  that  the  undersigned  makes  voluntary 
election  to  accept  the  terms,  conditions  and  provisions  to  provide,  secure  and  pay 
compensation  to  employes  for  injuries  received  as  provided  in  the  act  of  the  Thirty- 
third  session  of  the  Nebraska  legislature,  known  as  "The  Workmen's  Compensation 
Law  of  1913,"  approved  April  13,  1913,  and  effective  December  1,  1914,  and  acts 
amendatory  thereof,  and  that  the  undersigned  elects  to  liquidate  claims  for  per- 
sonal injuries  received  by  the  undersigned  as  an  employe  of 

under  the  terms,   conditions  and   provisions  of  said   "Workmen's   Compensation   Law 
of  1913,"  and  acts  amendatory  thereof. 

STATE   OF   NEBRASKA,  1 

L,: 

County  of J 

The  undersigned  being  duly  sworn  deposes  and  says  that  a  true,  correct  and 
verbatim  copy  of  the  foregoing  notice  was  on  the day  of.  191 

served  upon 

(employer's  name) 

Subscribed    and    sworn    to    before    me    by 

this day  of 191 


(SEAL)  Notary    Public. 


WORKMEN'S  COMPENSATION  LAW  137 

Employer's  Notice  to   Reject 

To  the  Employes  of  the  Undersigned,  and  the  Nebraska  Commissioner  of  Insurance: 
You  and  each  of  you  are  hereby  notified  that  the  undersigned  rejects  the  terms, 
conditions  and  provisions  to  provide,  secure  and  pay  compensation  to  employes  of 
the  undersigned  for  injuries  received  as  provided  in  the  act  of  the  Thirty-third 
session  of  the  Nebraska  legislature  known  as  the  "Workmen's  Compensation  Law 
of  1913,"  approved  April  13,  1913,  and  effective  December  1,  1914,  and  acts  amendatory 
thereof;  and  that  the  undersigned  elects  to  pay  damages  for  personal  injuries  re- 
ceived by  such  employe  under  the  common  law  and  statutes  of  this  state  as  modi- 
fied by  the  act  of  the  legislature  of  1913,  known  as  the  "Workmen's  Compensation 
Law  of  1913,"  and  acts  amendatory  thereof. 


By. 
STATE  OF  NEBRASKA,  1 


County   of.. 


The  undersigned   being   duly   sworn   deposes  and   says  that  a   true,   correct  and 
verbatim  copy  of  the  foregoing  notice  was  on  the day  of 191 , 

Posted  at 

(state  where  posted) 

Subscribed    and    sworn    to    before    me    by 

this day  of 191...... 


(SEAL^  Notary   Public. 


Employe's  Notice  to  Reject 


To and  the  Nebraska  Commissioner  of  Insurance: 

(name  of  employer) 

You  and  each  of  you  are  hereby  notified  that  the  undersigned  hereby  elects1  to 
reject  the  terms,  conditions  and  provisions  of  an  act  for  the  "payment  of  compen- 
sation for  personal  injuries,  known  as  "The  Workmen's  Compensation  Law  of  1913'" 
and  acts  amendatory  thereof,  approved  April  13,  1913,  and  effective  December  1, 
1914,  and  that  the  undersigned  elects  to  rely  upon  the  common  law  for  the  right  to 
recover  for  personal  injury  which  the  undersigned  may  receive,  if  any,  growing  out 
of  and  arising  from  the  employment  while  in  line  of  duty  for  my  employer  above 
named. 

Dated  this day  of - 19L 


STATE  OF  NEBRASKA,  1 

County   of J 

The  undersigned   being   duly   sworn   deposes   and   says  that   a  true,   correct  and 
verbatim  copy  of  the  foregoing  notice  was  on  the day  of 191 , 

served  upon ~ 

(employer's  name) 

Subscriber    and    sworn    to    before    me   by - 

this day  of.- 191 


(SEAL)  Notary  Public. 


138  STATE  DEPARTMENT  OF  LABOR 

First  Report  of  Accident 

Report  No.  1,  or  First  Report  of  the  Accident,  should  be  filed  with  the 
State  Department  of  Labor  immediately  following  the  accident.  Report 
No.  1  is  reproduced  below,  properly  filled  in.  These  blanks  may  be  had 
upon  application  to  the  State  Department  of  Labor. 

No.  1— First  Report  of  Accident    . 

WORKMEN'S  COMPENSATION  LAW  OF  1913 

STATE  OF  NEBRASKA 

STATE  DEPARTMENT  OF  LABOR 


To  be  filed  with  the  Commissioner  of  Labor  within  five  days  after  occurence  of  accident. 

TO  THE  COMMISSIONER  OF  LABOR: 

On  the 26 day  ol ¥*?. 191.5. 

at  about .9r?30- o'clock .?.t  m., 

M  Richard.  Hoe 

($amt  of  person  Injurtd) 

who  was  at  that  time  in  the  employ  of....l9.^J*>?J>?L*>?.j , 


.19M..Harnex.-.St, 

(Psrton,  firm  or  corporation) 


in  the  city  ot dnatta : county 

of rcugla* ,..._.„.....- ,  in  the  state  of  Nebraska,  while  in  the 

furtherance  of  hi?. duties  as  a  result  of  such  employment  met  with  the  following  accident...... _ 


Such  accident  was  such  as  to  prove....  .t«JporM7. 

(Afctow 

If  not  fatal;  the  Injured  will,  in  my  opinion,  be  able  to  perform  his  usual  duties  as.. .repairer 


(.Kind  of  > 

within  a  period  of .t*?9 weeks  from  the  above  date  and  has  at  this  time  been 

unable  to  perform  such  duties  for  a  period  ol 9°*.... --days  er  wtclw. 

Employer  was  first  notified  of  h:l8. -.accident  on .Kay..a6..... 191.fr. 

The  following  persons  witnessed  said  accident: 

Name..,. J^..W^.anltB. ,        Address....."...1916-fiaro9y.JS.t* 

Name Jo&n  ;;ppeT.___, „„...      Address *?.^..?a™«y..?.V. 

This  is  to  certify  that  the' above  is  a  true  and  coirect  report  to  the  best  of  my  knowledge  and  belief. 

Signed  this -,Mi* , day  of..,, .«a^L j\.  o,  191.5*. 


»ra  Motor. Co., 

(firm,  ptaon  or  corporafifny 

g^  %«f  loglaacl  Casualty  Co., 

"""iS^«y"*.«g 

Adjusters. 


WORKMEN'S  COMPENSATION  LAW  139 

Second  Report  of  Accident 

Report  No.  2,  or  the  Second  Report  of  the  Accident,  should  be  filed 
with  the  State  Department  of  Labor  as  soon  as  the  degree  and  nature 
of  the  injury  has  been  ascertained  and  a  release  or  settlement  has  been 
secured  or  reached. 

No.  2— Second  Report  of  Accident  <^^» 

WORKMEN'S  COMPENSATION  LAW  OF  1913 

FINAL  REPORT  OF  ACCIDENT  AND  SETTLEMENT 

( To  be  filed  with  the  Commissioner  of  Labor,  Lincoln,  Nebraska,  within  ten  days  after  final  settlement.) 

TO  THE  COMMISSIONER  OF  LABOR: 

1.  Name  of  Employer Ford..M(j  tpr..C.Q., _ „ „ 

2.  Address 1.91$..Harney. Street,.™ $*&*.. _ Nebraska 

3.  Kind  of  Business_...AU.tam.0.toilB8...-_ ^ _ 

EMPLOYE: 

4.  Name   RlWxaid.Jtofl _ „„..„ ......... ™. 

o.    Address...252.9..pecatur Street Qmana Nebraska 

6.    Age....23. 7.    Married  or  Single Slngle_ &    Sex...Male _ 

9.    How  long  Employed? 3..5°?.?5.8. 10..  General  Duties..??.?.^™.?...... 


11.  How  long  in  this  particular  service? 

12.  Skilled  in  this  work?...Xeft 13.    Hours  per  day  worked:../! ; 

14.  Day  or  night  work Day. „ „...; 

THE  MACHINE,  APPLIANCE  OR  THING  IMMEDIATELY  CAUSING  THE  ACCIDENT: 

15.  What  was  it? ?.?*A8 


16.    Was  it  in  good  working  order?..T~r.  ......  17.   Was  It  safeguarded?...rr.Trrr_  ___ 

18.    Was  it  inspected?..--—  —  ._  ..............  19.    By  whom?.. 

20.    How  did  the  accident  happen?  .......  fl^.Wi»«_90JU^_Mft»A3««L.«Wa,V.iAJKl.ft.fi3(  _____ 


CONTRIBUTING  CAUSES: 

21.  Carelessness  of  injured  person  _____  —  ___  «.  ____  .....-,,. 

22.  Negligence  of  a  fellow  workman 

23.  Violation  of  rules...  ___________  .......„.--„  ___  .  _____  .  _____  .  _____  .,..„...  ____  _  ___  .....    __  ...^...,m.>. 

THE  INJURY: 

24.  Nature  and  extent.....^?."^.1.?.?. 

25.  Was  surgical  aid  rendered?..  I??.  .....  _„  26.    When?  ._At..pnce  ...... 

27.    By  whom  .......  PT....E.  .  R.,..Pptt  er...  28.    Where?.._.*ft.  -4Q?.  to.r  '.8  .  of  J  ice. 

29.  Where  was  injured  employe  taken?.  ......  Returnea  .  to.  W<jr]t. 

30.  Did  injury  result  in  death? 


* 


31.  If  DEATH  resulted,  was  deceased  a  citizen  of  the  United  States?__-s.r?t?r?.  ___________  j?.« 

32.  If  an  ALIEN,  give  nationality,  place  of  birth,  parentage  and  names  and  addresses  of  dependents  ol 
deceased  employe  —  ~....J.r.-.;..r.7./.v^..~-  ..........  -----------------------  __  ________ 


(THE  COMPENSATION: 

33.    Date  of  injury Msy...^*. 19l5....  34.    Compensation  began....rrTT~T. I91~. 

35.    Disability  ended...M.ay..2<5>. 191.5.'...  36.    Average  weekly  wage  $i<$«3&. 

37.  Amount  agreed  upon  as  weekly  compensation  $....~.;.1...  ~.':. 

38.  Total  compensation  paid  employe  $...r-.r.r~— 

39.  Hospital  and  medical  services  paid  $....<^PP 

40.  Ambulance  fee  paid  $.....~~-rrr. 4L    Nurse  fees  paid  $...Trrr 

This  report  dated  at        _     P«aliaA  Netir.      .  .....fer.4..MO.tQr...CO.«, .. 

l^mnfmm^H 

Uay  27,  1915.     Bv       New  Engiand  Casualty  Co. ^ 

""aey  4  Kennedy, 
Adjusters. 


140 


STATE  DEPARTMENT  OF  LABOR 


Receipt  for  Partial  Payments 


The  following  form  of  receipt  has  been  approved  by  the  attorney 
general  for  use  in  showing  the  receipt  of  partial  payments  under  the 
Compensation  Law.  A  duplicate  copy  should  be  filed  with  the  State  De- 
partment of  Labor.  These  blanks  may  be  had  upon  application  to  the 
State  Department  of  Labor: 

State  of  Kebraska 

State   Department   of   Labor 

RECEIPT  FOR  PARTIAL  PAYMENT 

Under  the  Nebraska  "Workmen's   Compensation  Law   of   1913" 


.101. 


RECEIVED   OF 


the  slim  of Dollars   ($ ) 

said  amouut  being  such  part  of  my  weekly  wages  for  a  period  of ~ 

from    the day    of _ 191 ,    to   the 

day  of 101 as  I  am  entitled  to  under  the   Nebraska 

"Workmen's   Compensation    Law   of   1913,"   on   account   of   an    accident   sustained   by 

me   on   or  about  the day   of. 191 ,   while   in   the 

employ    of 

(Name)    

(Address)  

Witnesses: 

STATE    OF    NEBRASKA  ^ 

Us: 

County    of 

being  first  duly  sworn  deposes  and 

says  that  on  the. day  of A.  D.  191 ,  I  read  the 

above   receipt  to 

who  signed  the  same,  and  that  before  he  signed,  I  correctly  interpreted  the  contents 
of  said   receipt  from  the  English   language   into  the 

language    to    said..._ ...i.ancl    the    said then 

stated  that  he  fully  knew  and  undersold  the  contents  of  said  receipt. 

Subscribed  and  sworn  to  before  me  this day  of A.  D.,  191 

(SEAL).  _ 

Notary  Public  in  and  for  County  and  State  Aforesaid. 


WORKMEN'S  COMPENSATION  LAW  141 

Receipt  Showing  Release  and  Final  Settlement 

The  following  form  has  been  approved  by  the  attorney  general  for 
use  in  showing  a  release  and  final  settlement  under  the  Compensation  Law. 
A  duplicate  copy  should  be  filed  with  the  State  Department  of  Labor. 
These  blanks  may  be  had  upon  application  to  the  State  Department  of 
Labor: 

State  of  Nebraska 
Nebraska  State  Department  of  Labor 

RELEASE  AND   FINAL   RECEIPT 
For   Compenastion   Paid  Under  the  Nebraska  Workmen's  Compensation  L,aw  of  1913' 

..191 

RECEIVED   OF.- 


the  sum  of Dollars    ($ > 

making  in  all,  with  the  weekly  payments  already  received  by  me,  the  total  sum  of 

($ ) 

such  payment  being  the  final  payment  of  Compensation   under  the  Nebraska  Work- 
men's  Compensation    Law   of   1913,    and   in   consideration    of   which    I   hereby    release 

and  forever  discharge  the  said 


heirs,  successors  and  assigns,  from  any  and  all  actions,  causes  of  action,  claims  and 
demands,  for,  upon  or  by  reason  of  any  damage,  loss,  injury,  suffering  and  disfig- 
urement which  heretofore  has  been  or  which  hereafter  may  be  sustained  by  me  in 

consequence  of  an  accident  suffered  by  me  on  or  about  the 

day  of 101 ,  while  in  the  employ  of 


Witness   my   hand   and   seal,   this day  of 101. 

Witnesses:  

(SEAL) 


STATE    OF    NEBRASKA 
County    of 


being  first  duly   sworn  deposes  and 

says  that  on  the day  of 191 ,  he  read  the 

above   receipt  to 


who   signed  the   same,   and  that  before   signing,   he,   this   deponent,   correctly   inter- 
preted the  contents  of  said  .receipt  from  the  English  language  in  the 

language    to    said „ _...and    the    said _ then 

stated  to  this  deponent  that  he  fully  knew  and  understood  the  contents  of  said  receipt. 


Subscribed  and  sworn  to  before  me  this day  of A.  D.,  191. 

(SEAL) 


Notary  Public  in  and  for  County  and  State  Aforesaid. 


142  STATE  DEPARTMENT  OF  LABOR 

The  following  blank  is  for  use  in  filing  a  withdrawal  of  an  election  to 
reject  Part  II  of  the  compensation  law  by  an  employer.  These  blanks  may 
be  had  upon  application  to  the  State  Department  of  Labor. 

Employer's  Withdrawal   of   Rejection 

To  the  Employes  of  the  Undersigned,  and  the  Nebraska  Commissioner  of  Insurance: 

You  and  each  of  you  are  hereby  notified  that  the  undersigned  hereby  withdraws 

the  election   to  reject   Part   II    of   "The   Nebraska   Workmen's   Compensation   Law   of 

1913,"  filed  with  the  "State  Insurance  Commissioner  on  or  about -191 , 

and  eelcts  to  accept  the  terms,  conditions  and  provisions  to  provide,  secure  and  pay 
compensation  to  emplayes  »of  the  undersigned  for  injuries  received  as  provided  in 
the  act  of  the  Thirty-third  session  of  the  Nebraska  legislature,  known  as  "The 
Workmen's  Compensation  Law  of  1913,"  approved  April  13,  1913,  and  effective  Decem- 
ber 1,  1914,  and  acts  amendatory  thereof,  and  that  the  undersigned  elects  to  pay 
damages  for  personal  injuries  received  by  such  employe  under  the  terms,  conditions 
and  provisions  of  said  "Workmen's  Compensation  Law  of  1913,"  and  acts  amendatory 
thereof. 


By 

STATE  OF  NEBRASKA  / 

-  ss. 
County  of ) 

The  undersigned   being   first   duly   sworn    deposes   and   says  that  a  true,   correct 
and  verbatim  copy  of  the  foregoing  notice  was  on  the day  of 191...., 

posted   at 

State  Where  Posted 


By 

Subscribed  and  sworn  to  before  me  by 

this day  of 191 

(SEAL)  

Notary   Public 

The  following  blank  is  for  use  in  filing  a  withdrawal  of  an  election  to 
reject  Part  II  of  the  compensation  law  by  an  employe.  These  blanks  may 
be  had  upon  application  to  the  State  Department  of  Labor. 

Employe's  Withdrawal  of  Rejection 

To  the  Employer  of  the  Undersigned,  and   the  Nebraska  Commissioner  of  Insurace: 

You  and  each  of  you  are  hereby  notified  that  the  undersigned  hereby  withdraws 
the  election  to   reject  Part  II   of  "The   Nebraska   Workmen's   Compensation   Law   of 

1913,"  filed  with  the  State  Insurance  Commissioner  on  or  about 191 , 

and    makes    voluntary    election    to    accept    the    terms,    conditions    and    provisions    to 

Erovide,  secure  and  pay  compensation  to  employes  for  injuries  received  as  provided 
a  the  act  of  the  Thirty-third   session   of  the  Nebraska   legislature,   known  as   "The 
Workmen's  Compensation  Law  of  1913,"  approved  April  13,  1913,  and  effective  Decem- 
ber 1,  1914,  and  acts  amendatory  thereof,  and  that  the  undersigned  elects  to  liquidate 
claims  for  personal  injuries  received  by  the  undersigned  as  an  employe  of 


under  the  terms,  conditions  and   provisions  of  said   "Workmen's  Compensation   Law 
of  1913."  and  acts  amendatory  thereof. 

STATE  OF  NEBRASKA 

County  of 

The  undersigned   being  first   duly   sworn   deposes  and   says  that  a  true,   correct 

and  verbatim  copy  of  the  foregoing  notice  was  on  the day  of 191...., 

served    upon 


Employer's  Name 


Subscribed  and  sworn  to  before  me  by _ 

this day  of. 191 

.(SEAL) 

Notary   Public 


WORKMEN'S  COMPENSATION  LAW  143 


The  General  Divisions  of  the  Law 

"Part  I"  refers  to  the  adjudication  of  personal  injury  damage  suits 
in  the  courts  and  affects  employers  and  employes  who  do  not  "elect"  to 
operate  under  Part  II — the  Compensation  Law.  Part  I  is  so  framed  as 
to  penalize  both  employer  and  employe  if  they  elect  to  retain  the  com- 
mon law  system  based  upon  negligence  of  the  employer,  the  object  being 
to  encourage  everyone  to  accept  the  automatic  workmen's  compensation 
system  as  set  forth  in  Part  II. 

The  Two  Options 

All  employers  of  five  or  more  persons,  except  railroads  engaged  in 
interstate  commerce  and  employers  of  farm  labor,  domestic  servants  and 
"casual  workers"  are  presumed  by  the  terms  of  the  law  to  have  "elected" 
to  come  within  the  provisions  of  Part  II,  in  the  absence  of  written  or 
printed  notice  to  the  contrary.  (See  Section  12.) 

Any  employer  may  elect  to  be  liable  only  for  those  accidents  for 
which — through  negligence — he  may  be  responsible,  by  posting  a  notice  to 
this  effect  in  the  place  where  his  workmen  are  employed,  but  in  such  cases 
the  employer  cannot,  when  sued  for  damages  on  account  of  the  accidental 
death  or  injury  of  an  employe,  avail  himself  of  either  of  the  following 
defenses : 

Assumption  of  risk, 

Fellow-servant   doctrine, 

Contributory  negligence. 

The  loss  of  these  old  time  and  most  important  common  law  defenses 
constitutes  the  penalty  imposed  by  the  legislature  upon  the  employer  who 
elects  for  litigation  under  Part  I  in  preference  to  compensation  under 
Part  II.  (See  Section  3.) 

Employe's  Option 

All  employes  (where  the  employer  is  subject  to  the  Act,  as  shown 
in  Section  6)  are  likewise  presumed  to  have  elected  to  work  under  Part 
II,  unless  they  serve  a  written  notice  upon  the  employer  to  the  contrary, 
as  prescribed  in  Section  12. 

If  an  employe  elects  for  litigation  as  against  compensation,  the  em- 
ploye is  penalized,  for  in  such  cases  the  three  defenses  above  mentioned 
are  available  to  the  employer  when  suit  is  brought  against  him,  thereby 
greatly  lessening  the  employe's  chance  to  recover  a  judgment. 

It  will  be  noted  that  the  framers  of  this  law  have  made  it  a  strong 
inducement  to  both  parties  to  work  together  under  the  Compensation 
System.  If  the  experience  under  similar  laws  in  other  states  is  a  criterion, 
few  if  any  of  those  affected  by  the  Nebraska  Act  will  choose  to  subject 
themselves  to  the  uncertainties  inherent  in  the  negligence  system  by  re- 
maining under  Part  I. 

Method  of  Making  Election 

No  affirmative  action  is  required  to  come  under  Part  II,  the  law  as- 


144  STATE  DEPARTMENT  OF  LABOR 

suming  that  both  employer  and  employe  have  mutually  accepted  the  Work- 
men's Compensation  System  in  the  absence  of  notice  to  the  contrary. 
(See  Sections  9  to  13.) 

Total  Disability 

For  the  first  300  weeks  the  compensation  shall  be  50%  of  the  regular 
wages  of  the  injured  employe,  subject  to  a  maximum  weekly  payment  of 
$10.00  and  a  minimum  payment  of  $5.00,  except  where  the  wage  is  less 
than  $5.00  the  compensation  shall  be  100%  of  wages  instead  of  50%.  After 
the  first  300  weeks,  during  continuance  of  total  disability,  the  compen- 
sation shall  be  40%  of  wages,  maximum  payment  $8.00  and  minimum 
$4.00  per  week,  for  life,  except  that  if  the  regular  wage  was  less  than 
$4.00,  then  the  compensation  shall  be  the  full  amount  of  the  wage.  (See 
Section  21,  Subdivision  1.) 

Partial  Disability 

Where  the  injured  employe  is  able  to  work  only  part  of  the  time 
or  where  his  injuries  are  such  as  to  reduce  his  earning  power  even  though 
he  works  full  time,  the  compensation  shall  be  50%  of  the  difference  be- 
tween his  regular  wage  and  the  amount  received  after  the  injury,  subject 
to  a  maximum  payment  of  $10.00  a  week.  Payment  for  partial  disability 
limited  to  300  weeks.  (See  Section  21,  Subdivision  2.) 

Dismemberments 

The  following  specific  i;i:!civir.itics  are  paid  for  loss  of: 

50%  of  wages  for  Maximum 

Hand  175  weeks  $1750.00 

Arm    215  weeks  2150.00 

Foot    150  weeks  1500.00 

Leg    215  weeks  2150.00 

Eye    125  weeks  1250.00 

Compensation  for  dismemberments  shall  not  exceed  $10.00  per  week 
nor  be  less  than  $5.00  per  week,  except  where  the  regular  wage  is  less 
than  $5.00,  then  the  compensation  shall  be  the  full  wage.  (See  Section 
21,  Subdivision  3.) 

The  loss  of  both  hands  or  both  arms,  or  both  feet,  or  both  legs,  or 
both  eyes  shall  constitute  total  disability,  to  be  compensated  according  to 
Subdivision  1  of  Section  21. 

Death   (See  Sections  22  and  23) 

Where  the  deceased  employe  leaves  persons  entirely  dependent  upon 
him  for  support,  the  compensation  shall  be  50%  of  wages  for  not  exceeding 
350  weeks,  subject  to  a  maximum  payment  of  $10.00  per  week,  and  a  min- 
imum payment  of  $5.00  per  week.  Where  the  regular  wage  is  less  than 
$5.00  a  week,  compensation  shall  be  the  full  wage. 

If  the  deceased  employe  leaves  no  persons  entirely  dependent  upon 
him  for  support,  but  leaves  one  or  more  partial  dependents,  the  compensa- 
tion shall  be  the  same  proportion  of  the  benefits  mentioned  in  the  preceding 
paragraph  as  the  average  amount  of  the  wage  regularly  contributed  by 


WORKMEN'S  COMPENSATION  LAW  145 

the   deceased   to   the   partial   dependents  bears  to  the  total  wage   of  the 
deceased.     Dependents  are  described  in  Section  24. 

Burial  Expenses  (Section  22,  Subdivision  3) 

Regardless  of  whether  or  not  there  be  dependents  entitled  to  compen- 
sation, the  employer  becomes  liable  for  the  reasonable  expenses  of  burial, 
not  exceeding  $100.00  in  amount,  in  addition  to  all  other  benefits  payable 
under  the  law. 

Medical  Aid  (See  Section  20) 

In  all  cases  of  injury  received  in  the  course  of  employment,  the  em: 
ployer  is  obligated  to  furnish  full  medical  aid  and  surgical  and  hospital 
treatment  for  the  first  three  weeks  after  the  accident,  not  exceeding  $200.00 
in  amount. 

When  Compensation  Begins  (See  Section  19) 

No  compensation  is  payable  for  the  first  fourteen  calendar  days  of 
disability,  except  for  medical  aid,  unless  the  disability  continues  eight  weeks 
or  longer,  when  compensation  will  be  computed  from  the  date  of  the 
injury. 

Miscellaneous  Provisions 

Third  Persons'  Rights  and  Liabilities.     (Sections  16-18.) 

Wilful  Negligence  of  Employe  relieves  employer  of  liability.  (Sec- 
tion 27.) 

Injury  which  Increases  Previous  Disability.      (Section  28.) 

Liability  of  Joint  Employers.     (Section  29.) 

Contributions  by  Employe.      (Section  30.) 

Employe  Not  Permitted  to  Waive  Rights.     (Section  31.) 

Notice  of  Injury  Required.      (Section  33.) 

Examination  and  Verification  of  Injury,  and  Autopsy.  (Sections  34 
and  35.) 

Settlement  and  Payment  of  Compensation.  The  interested  parties 
have  the  right  to  settle  all  matters  of  compensation  between  themselves 
(Section  36),  subject  to  certain  restrictions  shown  in  Section  40,  41,  42 
and  43. 

Procedure  in  Case  of  Dispute.     (Sections  37  and  39.) 

Reports  of  Settlements  and  Accidents.     (Section  45.) 

All  accidents  must  be  reported  to  the  Labor  Commissioner  immedi- 
ately after  settlement  is  made,  failing  to  do  so,  the  employer  is  subject 
to  a  $50.00  fine  for  each  offense. 

Insurance.     (Sections  46,  47  and  48.) 

Employers  may  insure  their  liability  to  pay  compensation  only  in 
companies  licensed  to  write  such  risks  in  this  state.  No  policy  shall  be 
written  by  any  company  unless  it  covers  the  entire  liability  of  the  em- 
ployer under  the  law,  without  limit  in  amount. 

Employes   have   the  right  to  bring   an   action   against   an  insurance 


146  STATE  DEPARTMENT  OF  LABOR 

company,  direct,  in  the  event  an  employer  becomes  insolvent  or  in  event 
an  execution  upon  a  judgment  for  compensation  is  returned  unsatisfied. 

Preference  as  to  Compensation.  (Section  51.)  Claims  for  compensa- 
tion have  the  same  preference  against  the  assets  of  the  employer  as  un- 
paid wages  for  labor. 

Words  and  Phrases  Defined.  (Section  52.) 


WORKMEN'S  COMPENSATION  LAW  147 


The  Nebraska  Workmen's  Compensation  Law 


Senate  File  No.  1 

A  BILL 

For  an  Act  prescribing  the  liability  of  an  employer  to  make  compensation 
for  injuries  received  by  an  employe  in  the  course  of  employment. 
Modifying  common  law  and  statutory  remedies,  in  such  cases. 
Establishing  an  elective  schedule  of  compensation.  Regulating 
procedure  for  the  determination  of  liability  and  providing  meth- 
ods for  payments  of  compensation  thereunder.  Repealing  all  acts 
and  parts  of  acts  in  conflict  herewith. 

Be  it  Enacted  by  the  People  of  the  State  of  Nebraska: 

PART  I 

Compensation  by  Action  at  Law — Modification  of  Remedies 

SECTION  1. — When  personal  injury  is  caused  to  an  employe  by  accident 
arising  out  of  and  in  the  course  of  his  employment,  of  which  the  actual 
or  lawful  imputed  negligence  of  the  employer  is  the  natural  and  proxi- 
mate cause,  he  shall  receive  compensation  therefor  from  his  employer, 
provided  the  employe  was  himself  not  wilfully  negligent  at  the  time  of 
receiving  such  injury,  and  the  question  of  whether  the  employe  was  wil- 
fully negligent  shall  be  one  of  fact  to  be  submitted  to  the  jury,  subject 
to  the  usual  powers  of  the  court  over  verdicts  rendered  contrary  to  the 
evidence,  or  to  law. 

SECTION  2. — In  all  cases  brought  under  Part  I  of  this  act  it  shall 
not  be  a  defense  (a)  that  the  employe  was  negligent,  unless  and  except 
it  shall  also  appear  that  such  negligence  was  wilful,  or  that  the  employe 
was  in  a  state  of  intoxication;  (b)  that  the  injury  was  caused  by  the 
negligence  of  a  fellow  employe;  (c)  that  the  employe  had  assumed  the 
risks  inherent  in,  or  incidental  to,  or  arising  from  the  failure  of  the  em- 
ployer to  provide  and  maintain  safe  premises  and  suitable  appliances, 
which  grounds  of  defense  are  hereby  abolished,  except  as  provided  in 
Section  4. 

SECTION  3. — If  an  employer  subject  to  the  provisions  of  this  act  as 
shown  in  Section  6  elects  not  to  come  under  Part  II  hereof,  he  loses  the 
right  to  interpose  the  three  defenses  above  stated  in  any  action  brought 
against  him  for  personal  injury  or  death  of  an  employe. 

SECTION  4. — If  an  employer  becomes  subject  to  Part  II  of  this  act, 
and  the  employe  does  not,  then  the  defenses  existing  under  the  laws  of 


148  STATE  DEPARTMENT  OF  LABOR 

Nebraska,  other  than  the  provisions  of  this  act,  at  the  time  of  the  per- 
sonal injury  or  death  of  the  employe  shall  be  available  to  the  employer 
in  any  action  brought  by  the  employe  or  his  dependents  for  personal 
injury  or  death. 

SECTION  5. — The  provisions  of  Sections  1,  2,  3  and  4  shall  apply  to 
any  claim  for  the  death  of  any  employe  arising  under  Chapter  21  of  the 
Compiled  Statutes  of  Nebraska,  1911,  and  the  acts  or  parts  of  acts  amend- 
atory thereof,  concerning  death  by  wrongful  act. 

SECTION  6.— (1)  The  provisions  of  this  act  shall  apply  to  the  State 
of  Nebraska  and  every  governmental  agency  created  by  it,  and  every 
employer  in  this  state  employing  five  or  more  employes,  in  the  regular 
trade,  business,  profession  or  vocation  of  such  employer. 

(2)  The  following  are  declared  not  to  be  hazardous  occupations  and 
not  within   the  provisions   of  this   act;   employers   of  household   domestic 
servants,   employers  of  farm   laborers   and   all   employers   employing   less 
than  five  employes,  in  the  regular  trade,  business,  profession  or  vocation 
of  such  employer.     Railroad  companies  engaged  in  interstate  or   foreign 
commerce  are  declared  subject  to  the  powers  of  Congress  and  not  within 
the  provisions  of  this  act. 

(3)  Any  employer  not  included  in -the  preceding  paragraphs  of  this 
section  and  the  employes  of  such  employer  may,  by  their  joint  election, 
filed  with  the  Insurance  Commissioner,  accept  the  provisions  of  Part  II 
of  this  act,  and  such  acceptances  shall  subject  them  to  the  said  provisions 
of  Part  II  hereof  to  all  intents  and  purposes  as  if  they  had  been  originally 
included   in   the  terms   of   Subdivision   2   of  this   section;    Provided,   how- 
ever,   that   either   such   employer   or   workmen    (prior   to    accident)    shall 
have  the  right  to  waive  such  election  to  come  under  Part  II  hereof,  the 
procedure  being  the   same   as   indicated  in   Subdivisions    (a)    and    (b)    of 
Section  12. 

SECTION  7. — In  all  actions  at  law  brought  pursuant  to  Part  I  of  this 
act,  the  burden  of  proof  to  establish  wilful  negligence  of  the  injured 
employe  shall  be  on  the  defendant. 

SECTION  8. — No  claim  or  agreement  for  legal  services  or  disburse- 
ments in  support  of  any  demand  made  or  suit  brought  under  the  pro- 
visions of  this  act  shall  be  an  enforceable  lien  against  the  amounts  to 
be  paid  as  damages  or  compensation  or  be  valid  or  binding  in  any  other 
respect,  unless  the  same  be  approved  in  writing  by  the  judge  presiding 
at  the  trial,  or  in  case  of  settlement  without  trial,  by  the  judge  of  the 
District  Court  of  the  district  in  which  such  issue  arose.  After  such 
approval,  if  notice  in  writing  be  given  the  defendant  of  such  claim  or 
agreement  for  legal  services  and  disbursements,  the  same  shall  be  a  lien 
against  any  amount  thereafter  to  be  paid  as  damages  or  compensation. 
Provided,  however,  that  where  the  employe's  compensation  is  payable  by 
the  employer  in  periodical  installments,  the  court  shall  fix,  at  the  time  of 
approval,  the  proportion  of  each  installment  to  be  paid  on  account  of 
legal  services  and  disbursements. 


WORKMEN'S  COMPENSATION  LAW  149 

PART  II 
Elective  Compensation 

SECTION  9. — If  both  employer  and  employe  become  subject  to  Part  II 
of  this  act,  both  shall  be  bound  by  the  schedule  of  compensation  herein 
provided,  which  compensation  shall  be  paid  in  every  case  of  injury  or 
death  caused  by  accident  arising  out  of  and  in  the  course  of  employment, 
except  accidents  caused  by,,  or  resulting  in  any  degree  from  wilful  negli- 
gence, as  hereinafter  defined,  of  the  employe. 

SECTION  10. — When  employer  and  employe  shall  by  agreement,  ex- 
press or  implied,  or  otherwise  as  hereinafter  provided,  accept  the  pro- 
visions of  Part  II  of  this  act,  compensation  shall  be  made  for  personal 
injuries  to  or  for  the  death  of  such  employe  by  accident  arising  out  of 
and  in  the  course  of  his  employment,  without  regard  to  the  negligence 
of  the  employer,  according  to  the  schedule  hereinafter  provided,  in  all 
cases  except  when  the  injury  or  death  is  caused  by  wilful  negligence  on 
the  part  of  the  employe;  and  the  burden  of  proof  of  such  fact  shall  be 
upon  the  employer. 

SECTION  11. — Such  agreement  or  the  election  hereinafter  provided  for 
shall  be  a  surrender  by  the  parties  thereto  of  their  rights  to  any  other 
method,  form  or  amount  of  compensation  or  determination  thereof  than 
as  provided  in  Part  II  of  this  act,  and  an  acceptance  of  all  the  provisions 
of  Part  II  of  this  act,  and  shall  bind  the  employe  himself,  and  for  com- 
pensation for  his  death  shall  bind  his  legal  representatives,  his  widow  and 
next  of  kin,  as  well  as  the  employer  and  the  legal  representatives  of  a 
deceased  employer,  and  those  conducting  the  business  of  the  employer,  and 
those  conducting  the  business  of  the  employer  during  bankruptcy  or  in- 
solvency. 

SECTION  12. — Method  of  Election. — In  the  occupations  described  in 
Section  6  hereof,  and  all  contracts  of  employment  made  after  the  taking 
effect  of  this  act  shall  be  presumed  to  have  been  made  with  reference, 
and  subject  to  the  provisions  of  Part  II  hereof  unless  otherwise  expressly 
stated  in  the  contract,  or  unless  written  or  printed  notice  has  been  given 
by  either  party  to  the  other,  as  hereinafter  provided,  that  he  does  not 
accept  the  provisions  of  Part  II.  Every  such  employer  and  every  em- 
ploye is  presumed  to  accept  and  come  under  Part  II  hereof,  unless  prior 
to  accident  he  shall  signify  his  election  not  to  accept  or  be  bound  by  the 
provisions  of  Part  II.  This  election  not  to  accept  Part  II  shall  be  by 
notice  as  follows: 

(a)  The  employer  shall  post  and  thereafter  keep  continuously  posted 
in  a  conspicuous  place  about  the  place  or  places  where  his  workmen  are 
employed  a  written  or  printed  notice  of  his  election  not  to  be  bound  by 
Part  II  hereof,  and  shall  file  a  duplicate  thereof  with  the  Insurance  Com- 
missioner. 

(b)  The   employe   shall   give  written   or   printed   notice   to   the   em- 
ployer of  his  election  not  to  be  bound  by  Part  II  and  shall  file  a  duplicate 


150  STATE  DEPARTMENT  OF  LABOR 

with  proof  of  service  attached  thereto  with  the  Insurance  Commissioner. 
SECTION  13. — Waiving  Election. — An  employer  who  has  given  notice 
of  his  election  not  to  accept  or  be  bound  by  the  provisions  of  Part  II 
hereof,  may  waive  such  election  at  any  time,  by  posting  about  the  place 
or  places  where  his  workmen  are  employed  a  written  or  printed  notice 
setting  forth  a  withdrawal  of  his  previous  election  not  to  be  bound  by 
the  provisions  of  Part  II.  A  duplicate  of  such  notice  with  proof  of  such 
posting  attached  thereto  shall  be  filed  with  the  Insurance  Commissioner. 
An  employe  who  has  given  written  or  printed  notice  to  his  employer  that 
he  elects  not  to  be  subject  to  the  provisions  of  Part  II  hereof,  may  waive 
such  election  at  any  time  prior  to  the  happening  of  an  accident  resulting 
in  personal  injuries  to  said  employe,  by  a  notice  in  writing  directed  to 
the  employer  and  served  upon  the  employer  or  his  agent.  A  duplicate 
of  such  notice  with  proof  of  service  attached  thereto  shall  be  filed  with 
the  Insurance  Commissioner.  The  waivers  referred  to  in  the  preceding 
paragraphs  of  this  section  shall  not  become  effective  until  noon  of  the 
fifth  day  after  filing  the  required  notice  with  the  Insurance  Commis- 
sioner. 

SECTION  14. — Employer  Described. — The  following  shall  constitute 
employers  subject  to  the  provisions  of  this  act: 

(1)  The  State  and  every  governmental  agency  created  by  it. 

(2)  Every  person,  firm  or  corporation,  including  any  public  service 
corporation,  who   is   engaged   in   any  trade,   occupation,  business   or  pro- 
fession as  described  in  Section  6,  and  who  has  any  person  in  service  under 
any  contract  of  hire,  express  or  implied,  oral  or  written,  and  who  prior 
to  the  time  of  the  accident  to  the  employe  for  which  compensation  under 
this  act  may  be  claimed,  shall  not,  in  the  manner  provided  in  Section  12, 
have  elected  not  to  become  subject  to  the  provisions  of  Part  II  of  this  act. 

SECTION  15. — Employe  Described. — The  terms  "employe"  and  "work- 
man" are  used  interchangeably  and  have  the  same  meaning  throughout 
this  act;  the  said  terms  include  the  plural  and  all  ages  and  both  sexes, 
and  shall  be  construed  to  mean: 

(1)  Every   person   in   the   service  of   the    State   or   of   any   govern- 
mental agency  created  by  it,  "under  any  appointment  or  contract  of  hire, 
express  or  implied,  oral  or  written,  but  shall  not  include  any  official  of  the 
State,  or  of  any  governmental  agency  created  by  it,  who  shall  have  been 
elected  or  appointed  for  a  regular  term  of  office,  or  to  complete  the  un- 
expired  portion  of  any  regular  term. 

(2)  Every  person  in   the   service  of  any  employer  who  is  engaged 
in  any  trade,  occupation,  business  or  profession  as  described  in   Section 
6,  under  any  contract  of  hire,  express  or  implied,  oral  or  written,  including 
aliens  and  also  including  minors  who  are  legally  permitted  to  work  under 
the  laws  of  the  State,  who  for  the  purpose  of  making  election  of  remedies 
under  this  Code  shall  have  the  same  power  of  contracting  and  electing 
as  adult  employes. 

(3)  It  shall  not  be  construed  to  include  any  person  whose  employ- 
ment is  casual,  or  not  for  the  purpose  of  gain  or  profit  by  the  employer, 


WORKMEN'S  COMPENSATION  LAW  151 

or  which  is  not  in  the  usual  course  of  the  trade,  business,  profession  or 
occupation  of  his  employer.  The  term  "casual"  shall  be  construed  to 
mean  "Occasional;  coming  at  certain  times  without  regularity,  in  dis- 
tinction from  stated  or  regular." 

(4)  It  shall  not  be  construed  to  include  any  person  to  whom  articles' 
and  materials  are  given  to  be  made  up,  cleaned,  washed,  finished,  repaired 
or  adapted  for  sale  in  the  worker's  own  home  or  on  other  premises  not 
under  the  control  or  management  of  the  employer,  unless  the  employe 
is  required  to  perform  the  work  at  a  place  designated  by  the  employer. 

Third  Persons'  Rights  and  Liabilities 

SECTION  16. — Any  person,  firm  or  corporation  creating  or  carrying 
into  operation  any  scheme,  artifice  or  device  to  enable  him,  them  or  it 
to  execute  work  without  being  responsible  to  the  workmen  for  the  pro- 
visions of  this  act  shall  be  included  in  the  term  "employer"  and  with  the 
immediate  employer  shall  be  jointly  and  severally  liable  to  pay  the  com- 
pensation herein  provided  for  and  be  subject  to  all  the  provisions  of  this 
act.  This  section,  however,  shall  not  be  so  construed  as  to  cover  or  mean 
an  owner  who  lets  a  contract  to  a  contractor  in  good  faith,  or  a  contractor 
who,  in  good  faith,  lets  to  a  sub-contractor  a  portion  of  his  contract,  if 
the  owner  or  principal  contractor,  as  the  case  may  be,  requires  the  con- 
tractor or  sub-contractor,  respectively,  to  procure  a  policy  or  policies  of 
insurance  from  an  insurance  company  licensed  to  make  such  insurance 
in  this  state,  which  policy  or  policies  of  insurance  shall  guarantee  payment 
of  compensation  according  to  this  act  to  injured  workmen. 

SECTION  17. — Where  compensation  is  claimed  from,  or  proceedings 
taken  against  a  person,  firm  or  corporation  under  the  foregoing  section, 
the  compensation  shall  be  calculated  with  reference  to  the  wage  the  work- 
man was  receiving  from  the  person  by  whom  he  was  immediately  employed 
at  the  time  of  the  injury. 

SECTION  18. — Subrogation. — Where  a  third  person  is  liable  to  the 
employe  or  to  the  dependents,  for  the  injury  or  death,  the  employer  shall 
be  subrogated  to  the  right  of  the  employe  or  to  the  dependents  against 
such  third  person,  and  the  recovery  by  such  employer  shall  not  be  limited 
to  the  amount  payable  as  compensation  to  such  employe  or  dependents, 
but  such  employer  may  recover  any  amount  which  such  employe  or  his 
dependents  would  have  been  entitled  to  recover.  Any  recovery  by  the 
employer  against  such  third  person,  in  excess  of  the  compensation  paid 
by  the  employer  after  deducting  the  expenses  of  making  such  recovery, 
shall  be  paid  forthwith  to  the  employe  or  to  the  dependents,  and  shall 
be  treated  as  an  advance  payment  by  the  employer,  on  account  of  any 
future  installments  of  compensation. 

Schedule  of  Compensation 

SECTION  19. — When  Compensation  Begins. — No  compensation  shall  be 
allowed  for  the  first  fourteen  days  after  disability  begins,  except  as  pro- 
vided in  Section  20,  but  if  disability  extends  beyond  the  period  of  fourteen 


152  STATE  DEPARTMENT  OF  LABOR 

days,  compensation  shall  begin  on  the  fifteenth  day  after  the  injury;  Pro- 
vided, however,  that  if  such  disability  continues  for  eight  weeks  or  longer, 
such  compensation  shall  be  computed  from  the  date  of  the  injury. 

SECTION  20. — Medical  Aid. — During  the  first  twenty-one  days  after 
disability  begins  the  employer  shall  be  liable  for  reasonable  medical  and 
hospital  services  and  medicines  as  and  when  needed,  not  however  to  ex- 
ceed two  hundred  dollars  in  value,*  unless  the  employe  refuses  to  allow 
them  to  be  furnished  by  the  employer;  Provided,  however,  that  where  the 
injured  employe  refuses  or  neglects  to  avail  himself  of  such  medical  or 
surgical  treatment,  the  employer  shall  not  be  liable  for  any  aggravation 
of  such  injury  due  to  said  neglect  or  refusal. 

SECTION  21. — The  following  schedule  of  compensation  is  hereby  estab- 
lished for  injuries  resulting  in  disability: 

(1)  For  the  first  three  hundred  weeks  of  total  disability  the  com- 
pensation shall  be  fifty  per  centum  of  the  wages  received  at  the  time  of 
injury,   but   such   compensation   shall   not  be  more   than   ten   dollars   per 
week  or  less  than  five  dollars  per  week;   Provided,  that,  if  at  the  time 
of  injury  the  employe  receives  wages  of  less  than  five  dollars  per  week, 
then  he  shall  receive  the  full  amount  of  such  wages  per  week  as  com- 
pensation.     After   the   first  three  hundred  weeks   of  total   disability,   for 
the  remainder  of  the  life  of  the  employe,  he  shall  receive  forty  per  centum 
of  the  wages  received   at  the   time  of  the  injury,  but  the   compensation 
shall  not  be  more  than  eight  dollars  per  week  nor  less  than  four  dollars 
per  week;  Provided,  that,  if  at  the  time  of  the  injury  the  employe  receives 
wages  of  less  than  four  dollars  per  week  then  he  shall  receive  the  full 
amount   of    such    wages    as    compensation.      Nothing    in    this    subdivision 
shall   require   the   payment   of  compensation    after   disability    shall    cease. 
Should  partial  disability  be  followed  by  total  disability,  the  period  of  three 
hundred  weeks  mentioned  in  this  subdivision  of  this  section  shall  be  re- 
duced by  the  number  of  weeks  during  which  compensation  was  paid  for 
such  partial  disability. 

(2)  For  disability  partial  in  character    (except  the  particular  cases 
mentioned   in   Subdivision   3   of  this   section),   the   compensation   shall   be 
fifty  per  centum  of  the  difference  between  the  wages  received  at  the  time 
of   injury   and   the   earning   power   of  the   employe   thereafter,   but   such 
compensation   shall  not  be  more  than  ten   dollars   per  week.     This  com- 
pensation shall  be  paid  during  the  period  of  such  partial  disability;  not, 
however,  beyond  three  hundred  weeks  after  the  date  of  the  accident  caus- 
ing the  disability.     Should  total  disability  be  followed  by  partial  disability, 
the  period  of  three  hundred  weeks  mentioned  in  this  subdivision  shall  be 
reduced  by  the  number  of  weeks   during  which   compensation  was   paid 
for  such  total  disability. 

(3)  For  all  disability  resulting  from  permanent  injury  of  the  fol- 
lowing classes,  the  compensation  shall  be  exclusively  as  follows: 

For  the  loss  of  a  hand,  fifty  per  centum  of  the  wages  during  one 
hundred  and  seventy-five  weeks; 


WORKMEN'S  COMPENSATION  LAW  153 

For  the  loss  of  an  arm,  fifty  per  centum  of  wages  during  two  hun- 
dred and  fifteen  weeks; 

For  the  loss  of  a  foot,  fifty  per  centum  of  wages  during  one  hundred 
and  fifty  weeks; 

For  the  loss  of  a  leg,  fifty  per  centum  of  wages  during  two  hundred 
and  fifteen  weeks; 

For  the  loss  of  an  eye,  fifty  per  centum  of  wages  during  one  hundred 
and  twenty-five  weeks; 

For  the  loss  of  any  two  or  more  of  such  members,  not  constituting 
total  disability,  fifty  per  centum  of  wages  during  the  aggregate  of  the 
periods  specified  for  each. 

The  loss  of  both  hands  or  both  arms,  or  both  feet,  or  both  legs,  or 
both  eyes  shall  constitute  total  disability,  to  be  compensated  according 
to  the  provisions  of  Subdivision  1  of  this  section. 

Amputation  between  the  elbow  and  the  wrist  shall  be  considered  as 
the  equivalent  of  the  loss  of  a  hand,  and  amputation  between  the  knee 
and  the  ankle  shall  be  considered  as  the  equivalent  of  the  loss  of  a  foot. 
Amputation  at  or  above  the  elbow  shall  be  considered  as  the  loss  of  an 
arm,  and  amputation  at  or  above  the  knee  shall  be  considered  as  the  loss 
of  a  leg.  Permanent  loss  of  the  use  of  a  hand,  arm,  foot,  leg  or  eye  shall 
be  considered  as  the  equivalent  of  the  loss  of  such  hand,  arm,  foot,  leg 
or  eye.  Compensation  under  this  subdivision  shall  not  be  more  than  ten 
dollars  per  week  nor  less  than  five  dollars  per  week;  Provided,  that,  if 
at  the  time  of  injury  the  employe  receives  wages  of  less  than  five  dollars 
per  week,  then  he  shall  receive  the  full  amount  of  such  wages  per  week 
as  compensation. 

SECTION  22. — Injuries  Resulting  in  Death. —  (1)  If  death  results  from 
the  injuries  and  the  deceased  employe  leaves  one  or  more  dependents 
wholly  dependent  upon  his  earnings  for  support  at  the  time  of  the  acci- 
dent causing  the  injury,  the  compensation,  subject  to  the  provisions  of 
Section  23,  shall  be  fifty  per  centum  of  the  wages  received  at  the  time 
of  injury,  but  the  compensation  shall  not  be  more  than  ten  dollars  per 
week  nor  less  than  five  dollars  per  week;  Provided,  that,  if  at  the  time 
of  injury  the  employe  receives  wages  of  less  than  five  dollars  per  week, 
then  the  compensation  shall  be  the  full  amount  of  such  wages  per  week. 
This  compensation  shall  be  paid  during  dependency,  not  exceeding  three 
hundred  and  fifty  weeks  from  the  date  of  the  accident  causing  the  injury. 

(2)  If  the  deceased  employe  leaves  no  dependents  wholly  dependent 
upon  his  earnings  for  support  at  the  time  of  the  accident  causing  the  in- 
jury,  but   leaves    one    or    more    dependents    only    partly    dependent   upon 
his  earnings  for  support  at  said  time,  the  compensation  shall  be  the  same 
proportion  of  the  benefits   provided  in   Subdivision   1   of  this   section  for 
persons  wholly  dependent  as  the  average  amount  of  the  wage  regularly 
contributed   by   the   deceased   to    such    partial    dependents    at,    and   for   a 
reasonable  time  immediately  prior  to  the  injury  bears  to  the  total  wage 
of  the  deceased,  during  the  same  time. 

(3)  Upon  the  death  of  an  employe,  resulting  through  personal  in- 
juries as  herein  defined,  whether  or  not  there  be  dependents  entitled  to 


154  STATE  DEPARTMENT  OF  LABOR 

compensation,  the  reasonable  expenses  of  the  last  sickness  and  burial, 
not  exceeding  one  hundred  dollars,  without  deduction  of  any  amount  there- 
tofore paid  for  compensation  or  for  medical  expenses,  shall  be  paid  to 
his  dependents,  or  if  there  be  no  dependent,  then  to  the  personal  repre- 
sentatives of  the  deceased. 

(4)  Compensation  under  this  act  to  alien  dependents,  widows,  chil- 
dren and  parents  not  residents  of, the  United   States,  shall  be  the  same 
in  amount  as  is  provided  in  each  case  for  residents,  except  that  at  any 
time  within  one  year  after  the  death  of  the  injured  employe,  the  employer 
may,   at  his  option,  commute  all   future  installments  of  compensation  to 
be   paid   to   such  alien   dependents  by  paying  to  them   two-thirds   of  the 
total   amount   of   such   future   installments   of   compensation.     Alien   wid- 
owers, brothers  and  sisters  not  residents  of  the  United   States  shall  not 
be  entitled  to  any  compensation. 

(5)  The    consul-general,    consul,    vice-consul-general,    or    vice-consul, 
of   the   nation   which   the    employe,   whose   injury   results   in    death,   is   a 
citizen,   or  the  representative  of   such  consul-general,   consul,   vice-consul- 
general,   or  vice-consul,  residing  within  the   State   of  Nebraska,   shall  be 
regarded  as  the  sole  legal  representative  of  any  alien  dependents  of  the 
employe,  residing  outside  of  the  United  States,  and  representing  the  na- 
tionality of  the  employe.     Such  consular  officer  or  his  representative,  re- 
siding in  the  State  of  Nebraska,  shall  have  in  behalf  of  such  non-resident 
dependents,  the  exclusive  right  to  adjust  and  settle   all  claims   for  com- 
pensation  provided   by   this   act   and   to   receive   for   distribution   to   such 
non-residents  alien  dependents  all  compensation  arising  hereunder. 

SECTION  23. — Death  of  Employe  Receiving  Disability  Compensation. — 
The  death  of  an  injured  employe  prior  to  the  expiration  of  the  period 
within  which  he  would  receive  such  disability  payment,  shall  be  deemed 
to  end  such  disability,  and  all  liability  for  the  remainder  of  such  payment 
which  he  would  have  received  in  case  he  had  lived  shall  be  terminated, 
but  the  employer  shall  thereupon  be  liable  for  the  following  death  benefit 
in  lieu  of  any  further  disability  indemnity.  If  the  injury  so  received 
by  such  employe  was  the  cause  of  his  death,  and  such  deceased  employe 
leaves  dependents  as  hereinbefore  specified,  wholly  or  partially  dependent 
on  him  for  support,  the  death  benefit  shall  be  a  sum  sufficient,  when 
added  to  the  indemnity  which  shall  at  the  time  of  death  have  been  paid 
or  become  payable  under  the  provisions  of  this  act  to  such  deceased  em- 
ploye, to  make  the  total  compensation  for  the  injury  and  death  equal  to 
the  full  amount  which  such  dependents  would  have  been  entitled  to  receive 
under  the  provisions  of  Section  22  hereof  in  case  the  accident  had  re- 
sulted in  immediate  death,  and  such  benefit  shall  be  payable  in  the  same 
manner  and  subject  to  the  same  terms  and  conditions  in  all  respects  as 
payments  made  under  the  provisions  of  said  Section  22.  No  deduction 
shall  be  made  for  the  amount  which  may  have  been  paid  for  medical  and 
hospital  services  and  medicines  or  for  the  expenses  of  the  last  sickness 
or  burial.  If  the  employe  die  from  some  cause  other  than  the  injury, 
there  shall  be  no  liability  for  compensation  to  accrue  after  his  death. 


WORKMEN'S  COMPENSATION  LAW  155 

SECTION  24. — Dependents. — The  following  persons  shall  be  conclusive- 
ly presumed  to  be  wholly  dependent  for  support  upon  a  deceased  employe: 

(a)  A  wife  upon  a  husband  with  whom  she  is  living  at  the  time  of 
his  death; 

(b)  A  husband  upon  a  wife  with  whom  he  is  living  at  the  time  of 
her  death; 

(c)  A  child  or  children  under  the  age  of  sixteen  years   (or  over  said 
age,  if  physically  or  mentally  incapacitated  from  earning)   upon  the  par- 
ent with  whom  he  is  or  they  are  living  at  the  time  of  death  of  such  par- 
ent, there  being  no   surviving  parent.     In  case  there  is   more   than  one 
child  thus   dependent,   the   death   benefit  shall  be   divided   equally   among 
them; 

(d)  Compensation  shall  be  payable  under  Sections  22  and  23  to  or 
on  account  of  any  child,  brother  or  sister,  only  if  and  while  such  child, 
brother  or  sister,  is  under  the  age  of  sixteen.     No  compensation  shall  be 
payable  under  said  sections  to  a  widow,  unless  she  was  living  with  her 
deceased  husband  at  the  time  of  his  death;   provided,  that  a  wife  or  a 
husband  living  in  a  state  of  abandonment  for  more  than  two  years  at 
the  time  of  the  injury,  or  subsequently,  shall  not  be  a  beneficiary  under 
this   act.      The   terms   "child"   and   "children"   shall   include   step-children 
and  adopted  children  if  members  of  the  decedent's  household  at  the  time 
of  his  death,  and  shall  include  post-humous  children.     If  the  compensation 
payable   under   said    sections   to    any   person    shall   for    any   cause   cease, 
the  compensation  to  the  remaining  persons  entitled  thereunder  shall  there- 
after be  the  same  as  would  have  been  payable  to  them  had  they  been 
the  only  persons   entitled  to   compensation   at  the  time  of  the  death  of 
the  deceased.     If  a  widow  or  widower  of  a  deceased  employe  shall  re- 
marry, then  the  compensation  benefits  shall  become  payable  to  the  child 
or  children  of  such  widow  or  widower,  if  there  be  any  such  child  or  chil- 
dren; but  if  there  be  no  such  child  or  children  of  such  dependent  widow 
or  widower,  shall  not  be  affected  by  such  remarriage; 

(e)  In  all  other  cases,  questions  of  dependency,  in  whole  or  in  part, 
shall  be  determined  in  accordance  with  the  fact,  as  the  fact  may  be  at 
the  time  of  the  injury;  and  in  such  other  cases,  if  there  is  more  than  one 
person  wholly  dependent,  the  death  benefit  shall  be  divided  equally  among 
them,  and  persons  partly  dependent,  if  any,  shall  receive  no  part  thereof; 
if  there  is   no   one  wholly  dependent  and   more  than   one   person   partly 
dependent,  the  death  benefit  shall  be  divided  among  them  according  to  the 
relative  extent  of  their  dependency; 

(f)  No  person  shall  be  considered  a  dependent,  unless  he  or  she  be 
a  member  of  the  family  of  the  deceased  employe,  or  bears  to  him  the  rela- 
tion of  widow  or  widower,  or  lineal  descendent,  or  ancestor,  or  brother, 
or  sister; 

(g)  Questions   as  to  who   constitute   dependents   and   the  extent  of 
their  dependency  shall  be  determined  as  of  the  date  of  the  accident  to 
the  employe,  and  the  death  benefit  shall  be  directly  recoverable  by  and 
payable  to   the   dependent  or   dependents   entitled   thereto,   or   their   legal 
guardians   or    trustees.      No  dependent    of   an    injured   employe    shall    be 


156  STATE  DEPARTMENT  OF  LABOR 

deemed,  during  the  life  of  such  employe,  a  party  in  interest  to  any  pro- 
ceeding by  him  for  the  enforcement  of  collection  of  any  claim  for  com- 
pensation, nor  as  respects  the  compromise  thereof  by  such  employe. 

SECTION  25. — Except  as  hereinafter  provided,  all  amounts  of  compen- 
sation payable  under  the  provisions  of  this  act  shall  be  payable  periodically 
in  accordance  with  the  method  of  payment  of  the  wages  of  the  employe 
at  the  time  of  his  injury  or  death.  - 

SECTION  26. — Wherever  in  this  act  the  term  "wages"  is  used,  it  shall 
be  construed  to  mean  the  money  rate  at  which  the  service  rendered  is 
recompensed  under  the  contract  of  hiring  in  force  at  the  time  of  the 
accident,  and  shall  not  include  gratuities  received  from  the  employer  or 
others,  nor  shall  it  include  board,  lodging  or  similar  advantages,  received 
from  the  employer,  unless  the  money  value  of  such  advantages  shall  have 
been  fixed  by  the  parties  at  the  time  of  hiring.  In  occupations  involving 
seasonable  employment  or  employments  dependent  upon  the  weather,  the 
employe's  weekly  wages  shall  be  taken  to  be  one-fiftieth  of  the  total  wages 
which  he  has  earned  from  all  occupations  during  the  year  immediately 
preceding  the  accident,  unless  it  be  shown  that  during  such  year,  by  rea- 
son of  exceptional  causes,  such  method  of  computation  does  not  ascertain 
fairly  the  earnings  of  the  employe,  in  which  case  the  period  for  calcu- 
lation shall  be  extended  so  far  as  to  give  a  basis  for  the  fair  ascertain- 
ment of  his  average  weekly  earnings.  In  continuous  employments,  if 
immediately  prior  to  the  accident  the  rate  of  wages  was  fixed  by  the 
day  or  hour,  or  by  the  output  of  the  employe,  his  weekly  wages  shall  be 
taken  to  be  five  and  one-half  times  his  average  earnings  at  such  rate  for  a 
working  day  of  ordinary  length,  excluding  earnings  from  overtime  and 
using  as  the  basis  of  calculation  his  earnings  during  so  much  of  the  pre- 
ceding six  months  as  he  worked  for  the  same  employer. 

SECTION  27. — Wilful  Negligence. — If  the  employe  is  injured  by  reason 
of  his  intentional  wilful  negligence,  or  by  reason  of  being  in  a  state  of 
intoxication,  neither  he  nor  his  beneficiaries  shall  receive  any  compensation 
under  the  provisions  of  this  act. 

SECTION  28. — Injury  Increasing  Disability. — If  an  employe  receives 
an  injury,  which,  of  itself,  would  only  cause  partial  disability,  but  which, 
combined  with  a  previous  disability,  does  in  fact  cause  total  disability, 
the  employer  shall  only  be  liable  as  for  the  partial  disability,  so  far  as 
the  subsequent  injury  is  concerned. 

SECTION  29. — Liability  of  Joint  Employers. — In  case  any  employe  for 
whose  injury  or  death  compensation  is  payable  under  this  act  shall,  at 
the  time  of  the  injury,  be  employed  and  paid  jointly  by  two  or  more  em- 
ployers subject  to  this  act,  such  employers  shall  contribute  to  the  payment 
of  such  compensation  in  proportion  to  their  several  wage  liabilities  to 
such  employe.  If  one  or  more,  but  not  all  of  such  employers  should  be 
subject  to  the  provisions  of  Part  II  of  this  act,  then  the  liability  of  such 
of  them  as  are  so  subject  shall  be  to  pay  that  proportion  of  the  entire 


WORKMEN'S  COMPENSATION  LAW  157 

compensation  which  tneir  proportionate  wage  liability  bears  to  the  entire 
wages  of  the  employe;  Provided,  however,  that  nothing  in  this  section 
shall  prevent  any  arrangement  between  employers  for  a  different  distri- 
bution between  themselvs  of  the  ultimate  burden  of  compensation. 

SECTION  30. — Contributions  by  Employe. — No  savings  or  insurance  of 
the  injured  employe,  or  any  contribution  made  by  him  to  any  benefit  fund 
or  protective  association  independent  of  this  act  shall  be  taken  into  con- 
sideration in  determining  the  compensation  to  be  paid  hereunder,  nor  shall 
benefits  derived  from  any  other  source  than  those  paid  or  caused  to  be 
paid  by  the  employer  as  herein  provided,  be  considered  in  fixing  the 
compensation  under  this  act. 

SECTION  31. — No  Waiver  of  Rights. — No  agreement  by  an  employe 
to  waive  his  rights  to  compensation  under  this  act  shall  be  valid. 

SECTION  32. — Minors  and  Mentally  Incompetent. — If  an  injured  em- 
ploye is  mentally  incompetent  or  is  a  minor  at  the  time  when  any  right 
or  privilege  accrues  to  him  under  this  act,  his  guardian  or  next  friend 
may,  in  his  behalf,  claim  and  exercise  such  right  or  privilege. 

SECTION  33. — Notice  of  Injury. — No  proceedings  for  compensation  for 
an  injury  under  this  act  shall  be  maintained,  unless  a  notice  of  the  injury 
shall  have  been  given  to  the  employer  as  soon  as  practicable  after  the 
happening  thereto,  and  unless  the  claim  for  compensation  with  respect 
to  such  injury  shall  have  been  made  within  six  months  after  the  occur- 
rence of  the  same,  or,  in  cast  of  the  death  of  the  employe,  or  in  the  event 
of  his  physical  or  mental  incapacity  within  six  months  after  death  or  the 
removal  of  such  physical  or  mental  incapacity. 

The  said  notice  shall  be  in  writing,  and  shall  state  in  ordinary  lan- 
guage the  time,  place  and  cause  of  the  injury;  and  shall  be  signed  by 
the  person  injured,  or  by  a  person  in  his  behalf,  or,  in  the  event  of  his 
death,  by  his  legal  representative  or  by  a  person  in  his  behalf. 

The  notice  shall  be  served  upon  the  employer  or  an  agent  thereof. 
Such  service  may  be  made  by  delivering  said  notice  to  the  person  on 
whom  it  is  to  be  served,  or  leaving  it  at  his  residence  or  place  of  busi- 
ness, or  by  sending  it  by  registered  mail  addressed  to  the  person  or  cor- 
poration on  whom  it  is  to  be  served  at  his  last  known  residence  or  place 
of  business. 

A  notice  given  under  the  provisions  of  this  section  shall  not  be  held 
invalid  .  or  insufficient  by  reason  of  any  inaccuracy  in  stating  the  time, 
place  or  cause  of  the  injury,  unless  it  is  shown  that  it  was  the  intention 
to  mislead,  and  the  employer,  or  the  insurance  company  carrying  such 
risk,  as  the  case  may  be,  was  in  fact  misled  thereby.  Want  of  such  writ- 
ten notice  shall  not  be  a  bar  to  proceedings  under  this  act,  if  it  be  shown 
that  the  employer  had  notice  or  knowledge  of  the  injury. 

Examination  and  Verification  of  Injury 

SECTION  34. — Examination  of  Injured. — After  an  employe  has  given 
notice  of  an  injury  as  provided  in  Section  33,  and  from  time  to  time  there- 
after during  the  continuance  of  his  disability,  he  shall,  if  so  requested 


158  STATE  DEPARTMENT  OF  LABOR 

by  the  employer  or  the  insurance  company  carrying  such  risk,  submit 
himself  to  an  examination  by  a  physician  or  surgeon  legally  authorized 
to  practice  medicine  under  the  laws  of  the  State,  furnished  and  paid  for 
by  the  employer,  or  the  insurance  company  carrying  such  risk,  as  the 
case  may  be.  The  employe  shall  have  the  right  to  have  a  physician 
provided  and  paid  for  by  himself  present  at  the  examination.  The  re- 
fusal of  the  employe  to  submit  to  such  examination  shall  deprive  him  of 
the  right  to  compensation  under  this  act  during  the  continuance  of  such 
refusal  and  the  period  of  such  refusal  shall  be  deducted  from  the  period 
during  which  compensation  would  otherwise  be  payable. 

SECTION  35. — Autopsy. — In  all  death  claims,  where  the  cause  of 
death  is  obscure  or  disputed,  any  interested  party  may  require  an  autopsy, 
the  cost  of  such  autopsy  to  be  borne  by  the  party  demanding  the  same. 

Settlement   and   Payment   of   Compensation 

SECTION  36. — The  interested  parties  shall  have  the  right  to  settle  all 
matters  of  compensation  between  themselves  in  accordance  with  the  pro- 
visions of  this  act. 

SECTION  37. — In  case  of  a  dispute  over,  or  failure  to  agree  upon  a 
claim  for  compensation  between  employer  and  employe,  or  the  dependents 
of  the  employe,  the  claim  may  be  submitted  to  arbitration  in  such  manner 
or  method  as  may  be  mutually  agreed  upon,  or  either  party  may  submit 
the  claim,  both  as  to  the  question  of  fact,  the  nature  and  effect  of  the 
injuries,  and  the  amount  of  compensation  therefor,  according  to  the  sched- 
ule herein  provided,  to  the  District  Court  of  the  county  which  would  have 
jurisdiction  of  a  civil  action  between  the  parties,  which  court  shall  have 
authority  to  hear  and  determine  the  cause  as  a  suit  in  equity  and  enter 
final  judgment  therein  determining  all  questions  of  law  and  fact  in  ac- 
cordance with  the  provisions  of  this  act,  which  judgment  shall  be  final 
and  conclusive  unless  reversed  or  modified  on  appeal  or  otherwise  modified 
pursuant  to  the  provisions  of  this  act. 

SECTION  38. — In  case  of  personal  injury,  all  claim  for  compensation 
shall  be  forever  barred  unless,  within  one  year  after  the  accident,  the 
parties  shall  have  agreed  upon  the  compensation  payable  under  this  act, 
or  unless,  within  one  year  after  the  accident,  one  of  the  parties  shall 
have  filed  a  petition  as  provided  in  Section  39  hereof.  In  case  of  death, 
all  claims  for  compensation  shall  be  forever  barred  unless,  within  one 
year  after  the  death,  the  parties  shall  have  agreed  upon  the  compensa- 
tion under  this  act,  or  unless  within  one  year  after  the  death,  one  of 
the  parties  shall  have  filed  a  petition  as  provided  in  Section  39  hereof. 
Where,  however,  payments  of  compensation  have  been  made  in  any  case, 
said  limitation  shall  not  take  effect  until  the  expiration  of  one  year  from 
the  time  of  the  making  of  the  last  payment. 

SECTION  39. — Procedure  in  cases  of  dispute  shall  be  as  follows:  Either 
party  may  file  in  the  District  Court  a  verified  petition  setting  forth  the 
names  and  residences  of  the  parties  and  the  facts  relating  to  the  em- 
ployment at  the  time  of  the  injury,  the  injury  in  its  extent  and  character, 
the  amount  of  wages  being  received  at  the  time  of  injury,  the  knowledge 


WORKMEN'S  COMPENSATION  LAW  159 

of  or  notice  to  the  employer  of  the  occurrence  of  said  injury  and  such 
other  facts  as  may  be  necessary  for  the  information  of  the  court,  and 
also  stating  the  matter  or  matters  in  dispute  and  the  contention  of  the 
petitioner  with  reference  thereto. 

Upon  the  filing  of  such  petition  a  summons  shall  issue  and  be  served 
upon  the  adverse  party,  as  in  civil  causes,  together  with  a  copy  of  the 
petition.  Return  of  service  shall  be  made  within  four  days  from  the 
issuance  of  the  summons.  Within  seven  days  after  the  return  day  of 
such  summons  the  party  upon  whom  the  same  is  served  shall  file  an 
answer  to  said  petition,  which  shall  admit  or  deny  the  substantial  aver- 
ments of  the  petition,  and  shall  state  the  contention  of  the  defendant  with 
reference  to  the  matters  in  dispute,  as  disclosed  by  the  petition.  The  ans- 
wer shall  be  verified  in  like  manner  as  required  for  a  petition.  At  the 
expiration  of  the  time  fixed  for  filing  answers  the  court  shall  proceed  to 
hear  and  determine  the  cause  without  delay  and  shall  render  judgment 
thereon  according  to  the  form  of  law.  Any  appeal  from  such  judgment 
shall  be  prosecuted  in  accordance  with  the  general  laws  of  the  state  regu- 
lating appeals  and  actions  at  law  except  that  such  appeal  shall  be 
perfected  within  thirty  days  from  the  entry  of  the  judgment  and  the 
cause  shall  be  advanced  for  hearing  in  the  Supreme  Court  so  as  to  bring 
said  cause  on  for  argument  before  such  court  within  sixty  days  from  the 
filing  of  the  appeal  and  said  Supreme  Court  shall  render  its  judgment 
and  opinion  in  such  cases  within  thirty  days  after  submission. 

SECTION  40. — Payments  in  Lump  Sum. — The  amounts  of  compensa- 
tion payable  periodically  under  the  law,  either  by  agreement  of  the  parties, 
or  by  decision  of  the  court,  may  be  commuted  to  one  or  more  lump  sum 
payments,  except  compensation  due  for  death  and  permanent  disability. 
These  may  be  commuted  only  with  the  consent  of  the  District  Court. 

SECTION  41. — Settlements  to  be  Final — Exceptions. — All  settlements 
by  agreement  of  the  parties  and  all  awards  of  compensation  made  by 
the  court,  except  those  amounts  payable  periodically  for  six  months  or 
more,  shall  be  final  and  not  subject  to  readjustment. 

SECTION  42. — When  Compensation  Payable  Periodically  May  be  Modi- 
fied.— All  amounts  paid  by  an  employer  or  by  an  insurance  company 
carrying  such  risk,  as  the  case  may  be,  and  received  by  the  employe  or 
his  dependents,  by  lump  sum  payments,  shall  be  final,  but  the  amount  of 
any  agreement  or  award  payable  periodically  for  more  than  six  months 
may  be  modified  as  follows: 

(a)  At  any  time  by  agreement  of  the  parties. 

(b)  If  the  parties  cannot  agree,  then  at  any  time  after  six  months 
from  the  date  of  the  agreement  or  award,  an  application  may  be  made 
to  the  court  by  either  party  on  the  ground  of  increase  or   decrease  or 
incapacity  due  solely  to  the  injury,  or  that  the  condition  of  a  dependent 
has  changed  as  to  age  or  marriage,  or  by  reason  of  the  death  of  a  de- 
pendent.    In  such  case  the  same  procedure  shall  be  followed  as  in  Section 
39  in  case  of  disputed  claim  for  compensation. 


160  STATE  DEPARTMENT  OF  LABOR 

SECTION  43. — Employer  May  Pay  Award  to  Trustee  and  be  Dis- 
charged.— At  any  time  after  the  amount  of  any  award  has  been  agreed 
upon  by  the  parties,  or  found  and  ordered  by  the  court,  a  sum  equal  to 
the  present  value  of  all  future  installments  of  compensation  may  (where 
death  or  the  nature  of  the  injury  renders  the  amount  of  future  payments 
certain)  by  leave  of  court,  be  paid  by  the  employer,  or  by  the  insurance 
company  carrying  such  risk,  as  the  case  may  be,  to  any  savings  bank  or 
trust  company  of  this  state,  in  good  standing,  and  such  sum  together 
with  all  interest  thereon,  shall  thereafter  be  held  in  trust  for  the  employe 
or  the  dependents  of  the  employe,  who  shall  have  no  further  recourse 
against  the  employer.  The  payment  of  such  sum  by  the  employer,  evi- 
denced by  the  receipt  of  the  trustee  to  be  filed  with  the  Insurance  Com- 
missioner, shall  operate  as  a  satisfaction  of  said  awards  as  to  the  employer. 
Payments  from  said  fund  shall  be  made  by  the  trustee  in  the  same  amounts 
and  at  the  same  time  as  are  herein  required  of  the  employer  until  said 
fund  and  interest  shall  be  exhausted.  In  the  appointment  of  the  trustee, 
preference  shall  be  given,  in  the  discretion  of  the  court,  to  the  choice  of 
the  injured  employe  or  the  dependents  of  the  deceased  employe,  as  the 
case  may  be. 

SECTION  44. — In  case  of  death,  where  no  executor  or  administrator  is 
qualified,  the  said  court  shall,  by  order,  direct  payment  to  be  made  to 
such  persons  as  would  be  appointed  administrator  of  the  estate  of  such 
decedent  upon  like  terms  as  to  bond  for  the  proper  application  of  com- 
pensation payments  as  are  required  of  administrators. 

SECTION  45. — Reports  of  Settlements  and  Accidents. — Report  of  all 
settlements  and  releases  shall  be  filed  by  the  employer  with  the  Labor 
Commissioner  within  sixty  days  after  such  settlements  are  made.  The 
said  reports  shall  contain  the  name  and  nature  of  the  business  of  the 
employer,  the  location  of  his  establishment  or  place  of  work,  the  name, 
age,  sex,  and  occupation  of  the  injured  employe,  and  shall  state  the  time, 
the  nature  and  cause  of  the  injury,  and  such  other  information  as  may 
be  required  by  the  Labor  Commissioner.  Any  employer  who  refuses  or 
neglects  to  make  the  report  required  by  this  section  shall  be  punished  by 
a  fine  of  not  more  than  fifty  dollars  for  each  offense.  If  the  injury  shall 
result  in  the  death  of  the  employe,  such  report  shall  show  whether  the 
deceased  was  a  citizen  of  the  United  States,  or  an  alien;  in  the  event 
that  the  deceased  was  an  alien,  such  report  shall  show  his  nationality, 
and  so  far  as  may  be  known,  his  place  of  birth,  parentage  and  names  and 
addresses  of  dependents.  If,  as  a  result  of  the  injury,  the  death  of  the 
employe  occurs  subsequent  to  the  making  of  such  report,  it  shall  be  the 
duty  of  the  employer  to  make  supplemental  reports  giving  the  same  in- 
formation as  if  the  injury  had  caused  the  immediate  death  of  the  em- 
ploye. 

When  an  injury  results  in  the  death  of  an  employe  who  is  a  citizen 
or  subject  of  a  foreign  country,  the  Labor  Commissioner  shall,  after 
such  death  has  been  reported  to  him,  at  once  notify  the  superior  consular 
officer  of  the  country  of  which  the  employe  at  the  time  of  his  death,  was 


WORKMEN'S  COMPENSATION  LAW  161 

a  citizen  or  subject,  and  whose  consular  district  embraces  the  State  of 
Nebraska,  or  the  representative,  residing  in  the  State  of  Nebraska,  of  such 
consular  officer,  whom  he  shall  have  formally  designated  as  his  represen- 
tative by  a  communication  in  writing  to  the  Labor  Commissioner.  Such 
notification  shall  contain  in  addition  to  the  name  of  the  employe,  such 
further  information  as  the  Labor  Commissioner  may  possess  respecting 
the  place  of  birth,  parentage,  and  names  and  addresses  of  the'  dependents 
of  the  employe. 

SECTION  46. — Insurance. — An  employer  who  is  liable  for  compensa- 
tion as  provided  in  this  act  may  insure  the  liability  to  pay  such  compen- 
sation in  any  liability  insurance  company  or  companies  licensed  to  write 
such  risks  in  the  State  of  Nebraska,  or  in  any  mutual  insurance  associa- 
tion authorized  under  the  laws  of  the  State  of  Nebraska  to  assume  such 
risks. 

SECTION  47. — Insurance  Policies. — No  policy  of  insurance  against  li- 
ability under  this  act  shall  be  made  unless  the  same  shall  cover  the  entire 
liability  of  the  employer  thereunder  and  shall  contain  an  agreement  by 
the  insurer  that,  in  case  the  employer  shall  be  or  become  insolvent,  or  in 
case  an  execution  upon  a  judgment  for  compensation  is  returned  unsatis- 
fied, an  employe  of  such  employer  or  dependents  of  a  deceased  employe 
who  shall  be  entitled  to  compensation  under  this  act  may  enforce  their 
claim  or  claims  to  compensation  against  the  insurer  to  the  same  extent 
that  the  employer  could  have  enforced  his  claim  against  such  insurer  had 
he  paid  compensation.  No  suit  shall  be  maintained  for  the  collection  of 
premiums  upon  any  such  policy  of  insurance,  unless  such  covenant  is 
contained  in  said  policy.  Such  covenant  shall  be  unaffected  by  any  de- 
fault of  the  insured  in  the  payment  of  premiums  and  shall  be  construed 
to  be  a  direct  promise  to  such  injured  employe  and  dependents,  and  shall 
be  enforceable  by  action  brought  in  the  name  of  such  injured  employe 
or  in  the  names  of  such  dependents.  Every  contract  for  the  insurance 
of  the  compensation  herein  provided  for,  or  against  liability  therefor, 
shall  be  deemed  to  be  made  subject  to  the  provisions  of  this  act,  and  pro- 
visions thereof  inconsistent  with  this  act  shall  be  void.  No  company 
or  association  shall  enter  into  any  such  contract  for  insurance  unless 
such  insurer  shall  have  been  approved  by  the  State  Insurance  Commis- 
sioner as  provided  by  law. 

SECTION  48. — Existing  Liability  Insurance  Contracts. — Nothing  herein 
shall  affect  any  existing  contract  for  employers'  liability  insurance,  or 
affect  the  organization  of  any  mutual  or  other  insurance  company,  or  any 
arrangement  now  existing  between  employers  and  employes,  providing 
for  the  payment  to  such  employes,  their  families,  dependents  or  repre- 
sentatives, sick,  accident  or  death  benefits  in  addition  to  the  compensa- 
tion provided  for  by  this  act;  but  liability  for  compensation  under  this 
act  shall  not  be  reduced  or  affected  by  any  insurance  of  the  injured  em- 
ploye, or  any  contribution  or  other  benefit  whatsoever,  due  to  or  received 
by  the  person  entitled  to  such  compensation,  and  the  person  so  entitled 


162  STATE  DEPARTMENT  OF  LABOR 

shall,  irrespective  of  any  insurance  or  other  contract,  have  the  rig-ii* 
recover  the  same  directly  from  the  employer,  and  in  addition  thereto, 
the  right  to  enforce  in  his  own  name  in  the  manner  provided  in  Section 
47  the  liability  of  any  insurer  who  may,  in  whole  or  in  part,  have  insured 
the  liability  for  such  compensation;  Provided,  however,  that  payment  in 
whole  or  in  part  of  such  compensation  by  either  the  employer,  or  the  in- 
surer, as  the  case  may  be,  shall,  to  the  extent  thereof,  be  a  bar  to  recovery 
against  the  other,  of  the  amount  so  paid. 


PART  III 
Miscellaneous   Provisions 

SECTION  49. — Employer — How  Released  from  Claims. — If  any  employe, 
or  his  dependents  in  case  of  death,  of  any  employer  subject  to  the  pro- 
visions of  Part  II  of  this  act  files  any  claim  with,  or  accepts  any  payment 
from  such  employer,  or  from  any  insurance  company  carrying  such  risk, 
on  account  of  personal  injury,  or  makes  any  agreement,  or  submits  any 
question  to  the  court  under  Part  II  of  this  act,  such  action  shall  constitute 
a  release  to  such  employer  of  all  claims  or  demands  at  law,  if  any,  arising 
from  such  injury. 

SECTION  50. — Payments  Not  Assignable. — No  payment  under  this  act 
shall  be  assignable  or  subject  to  attachment  or  garnishment,  or  be  held 
liable  in  any  way  for  any  debts,  except  as  provided  in  Section  8  hereof. 

SECTION  51. — Preference  as  to  Compensation.— The  right  to  compen- 
sation and  all  compensation  awarded  to  any  injured  employe  or  for  death 
claims  to  his  dependents  (without  limit  or  amount),  shajl  have  the  same 
preference  against  the  assets  of  the  employer  as  unpaid  wages  for  labor, 
but  such  compensation  shall  not  become  a  lien  on  the  property  of  third 
persons  by  reason  of  such  preference. 

Words  and  Phrases  Defined 

SECTION  52. — Throughout  this  act,  the  following  words  and  phrases 
as  used  therein  shall  be  considered  to  have  the  following  meaning  re- 
spectively, unless  the  context  shall  clearly  indicate  a  different  meaning 
in  the  construction  used: 

(a)  The    term    "Physician"   shall    include    "Surgeon,"    and    in    either 
case  shall  mean  one  legally  authorized  to   practice  his  profession  within 
the    State   of   Nebraska,    and   in   good   standing   in    his   profession    at   the 
time. 

(b)  The  word  "Accident,"  as  used  in  this  act  shall,  unless  a 'different 
meaning  is  clearly  indicated  by  the  context,  be  construed  to  mean  an  un- 
expected  or   unforseen   event   happening   suddenly   and   violently,   with    or 
without  human  fault  and  producing  at  the  time  objective  symptoms  of  an 
injury. 

The  terms  "Injury"  and  "Personal  injuries"  shall  mean  only  violence 
to  the  physical  structure  of  the  body  and  sucn  disease  or  infection  as 


WORKMEN'S  COMPENSATION  LAW  163 

.ctiiy  results  therefrom.  The  said  terms  shall  in  no  case  be  con- 
strued to  include  occupational  diseases  in  any  form,  or  any  contagious 
or  infectious  disease  contracted  during  the  course  of  employment,  or 
death  due  to  natural  causes  but  occurring  while  the  workman  is  at  work. 

"Death"  when  mentioned  as  a  basis  for  the  right  to  compensation 
means  only  death  resulting  from  such  violence  and  its  resultant  effects 
occurring  within  three  hundred  and  fifty  weeks  after  the  accident. 

(c)  Personal  Injuries,  Etc. — Without  otherwise  affecting  either  the 
meaning  or  interpretation  of  the  abridged  clause,  "Personal  injuries  arising 
out  of  and  in  the  course  of  employment,"  it  is  hereby  declared: 

Not  to  cover  workmen  except  while  engaged  in,  on  or  about  the 
premises  where  their  duties  are  being  performed,  or  where  their  services 
requires  their  presence  as  a  part  of  such  services  at  the  time  of  the  in- 
jury, and  during  the  hours  of  service  as  such  workmen. 

(d)  Wilful  Negligence. — For  the  purposes  of  this  act,  wilful  negli- 
gence shall  consist  of  (1)   deliberate  act,  or   (2)   such  conduct  as  evidences 
reckless    indifference   to    safety,    or    (3)    intoxication   at   the   time   of   the 
injury. 

(e)  Whenever  in  this  act  the  singular  is  used,  the  plural  shall  be 
included;  where  the  masculine  gender  is  used,  the  feminine  shall  be  in- 
cluded. 

(f)  The  designation  "State  Insurance  Commissioner"  or  "Insurance 
Commissioner"  as  used  herein  is  intended  to  mean  the  State  official  who 
has  charge  of  the  Insurance  Department  of  the  State  of  Nebraska. 

(g)  The  "court"  as  used  herein  shall  mean  the  District  Court  which 
would  have  jurisdiction  in  an  ordinary  civil  case  involving  a  claim  for  the 
injuries  or  death  in  question,  and  the  "judge"  shall  mean  a  judge  of  said 
court. 

SECTION  53. — Rights  of  Action  Preserved. — Every  right  of  action  for 
death  by  wrongful  act,  or  for  injury  by  negligence,  accruing  to  an  injured 
employe  prior  to  the  taking  effect  of  this  act  is  continued  and  preserved 
under  the  existing  law. 

SECTION  54. — Extension  of  Time  Limit  for  Commencement  of  Actions 
at  Common  Laiv  if  Act  Repealed  or  Held  Invalid. — If  the  provisions  of  this 
act  relating  to  the  compensation  for  injuries  to  or  death  of  workmen  shall 
be  repealed  or  adjudged  invalid  or  unconstitutional,  the  period  intervening 
between  the  occurrence  of  an  injury  or  death  and  such  repeal,  or  the 
final  adjudication  of  invalidity,  shall  not  be  computed  as  a  part  of  the 
time  limited  by  law  for  the  commencement  of  any  action  relating  to  such 
injury  or  death,  but  the  amount  of  any  compensation  which  may  have 
been  paid  for  any  such  injury  shall  be  deducted  from  any  judgment  for 
damages  recovered  on  account  of  such  injury. 

SECTION  55. — As  to  Constitutionality. — In  case  for  any  reason  any  para- 
graph or  any  provision  of  this  act  shall  be  questioned  in  any  court  and 
shall  be  held  to  be  unconstitutional  or  invalid,  the  same  shall  not  be  held 
to  affect  any  other  paragraph  or  provision  of  this  act,  except  that  Parts 


164  STATE  DEPARTMENT  OF  LABOR 

I  and  II  are  hereby  declared  to  be  inseparable,  and  if  either  pVuV  > 
declared  void  or  inoperative  in  an  essential  part,  so  that  the  whole  of  such 
part  must  fall,  the  other  part  shall  fall  with  it  and  not  stand  alone.  Part 
I  of  this  act  shall  not  apply  in  cases  where  Part  II  becomes  operative  in 
accordance  with  the  provisions  thereof,  but  shall  apply  in  all  other  cases 
when  the  employer  is  subject  to  the  provisions  of  this  act  and  in  such 
cases  shall  be  in  extension  or  modification  of  the  common  law. 

SECTION  56. — Acts  Repealed. — All  acts  or  parts  of  acts  inconsistent 
with  this  act  are  to  be  deemed  replaced  by  this  act  and  to  that  end  aro 
hereby  repealed. 

SECTION  57. — This  act  shall  be  known  as  the  "Workmen's  Compensa- 
tion Law  of  1913." 


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